The nature of the judicial process

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THE NATURE OF THE
JUDICIAL PROCESS

THE ADDRESSES CONTAINED IN THIS BOOK WERE
DELIVERED IN THE WILLIAM L. STORES
LECTURE SERIES, 1921, BEFORE THE
LAW SCHOOL OF YALE UNIVER¬
SITY, NEW HAVEN,

CONNECTICUT

STORRS LECTURES

Published by Yale University Press

The Reform of Legal Procedure. By
Moorfield Storey.

The Judiciary and the People. By
Frederick N. Judson.

Concerning Justice. By Lucilius A.
Emery.

Woman’s Suffrage by Constitutional
Amendment. By Henry St. George
Tucker.

Uniform in style with the Storrs Lectures

International Arbitration and Pro¬
cedure. By Robert C. Morris, with a
foreword by President Taft.

THE NATURE OF THE
JUDICIAL PROCESS

BY

BENJAMIN N. CARDOZO, LL.D.

NEW HAVEN: YALE UNIVERSITY PRESS
LONDON: HUMPHREY MILFORD
OXFORD UNIVERSITY PRESS

. G

COPYRIGHT, 192I, BY YALE UNIVERSITY PRESS

PRINTED IN THE UNITED STATES OF AMERICA

First published, December, 1921.
Second Printing, June, 1922.
Third Printing, October, 1922.
Fourth Printing, January, 1925.
Fifth Printing, October, 1925.
Sixth Printing, March, 1928.
Seventh Printing, March, 1931.

All rights reserved. This book may not be re¬
produced, in whole or in part, in any form, ex¬
cept by written permission from the publishers.

IN MEMORIAM

THIS VOLUME IS PUBLISHED IN MEMORY OF

ARTHUR P. McKINSTRY

DIED, NEW YORK CITY, JULY 21, 1 92 I

Born in Winnebago City, Minnesota, on Decem¬
ber 22, 1881, he was graduated from Yale College
in 1905, and in 1907 received the degree of
LL.B. magna cum laude from the Yale Law
School, graduating at the head of his class.
Throughout his career at Yale he was noted both
for his scholarship and for his active interest in
debating, which won for him first the presidency
of the Freshman Union and subsequently the
presidency of the Yale Union. He was also Class
Orator in 1905, and vice-president of the Yale
Chapter of Phi Beta Kappa.

Following his graduation from the School of
Law he entered upon the practice of his pro¬
fession in New York City and early met with the
success anticipated for him by his friends, — his
firm, of which hi was the senior member, being
recognized at the time of his death as among
the most prominent of the younger firms in the
city. He was counsel for the Post-Graduate
Hospital of New York, the Heckscher Founda-

5

18430

IN MEMORIAM

tion for Children, of which he was also a trustee,
and from 1912 to 1914 served as associate coun¬
sel to the Agency of the United States in the
American and British Claims Arbitration. By
his untimely death the bar of the City of New
York lost a lawyer outstanding for his ability,
common sense, conscientiousness, and high sense
of justice; and Yale University lost an alumnus
of whom she was proud, who gave freely of his
time and thought to his class of 1905, to the
development of the Yale School of Law, and to
the upbuilding of the Yale University Press,
which he served as counsel.

6

Contents

Lecture I. Introduction. The Method of

Philosophy . . 9

Lecture II. The Methods of History,

Tradition and Sociology . 51

Lecture III. The Method of Sociology.

The Judge as a Legislator .... 98

Lecture IV. Adherence to Precedent. The
Subconscious Element in the Judicial
Process. Conclusion . 142

THE NATURE OF THE
JUDICIAL PROCESS

Lecture I. Introduction. The
Method of Philosophy.

HE work of deciding cases goes on every

I day in hundreds of courts throughout
the land. Any judge, one might suppose, would
find it easy to describe the process which he had
followed a thousand times and more. Nothing
could be farther from the truth. Let some in¬
telligent layman ask him to explain: he will not
go very far before taking refuge in the excuse
that the language of craftsmen is unintelligible
to those untutored in the craft. Such an excuse
may cover with a semblance of respectability an
otherwise ignominious retreat. It will hardly
serve to still the pricks of curiosity and con¬
science. In moments of introspection, when there

9

INTRODUCTION

is no longer a necessity of putting off with a
show of wisdom the uninitiated interlocutor, the
troublesome problem will recur, and press for a
solution. What is it that I do when I decide a
case? To what sources of information do I ap¬
peal for guidance? In what proportions do I
permit them to contribute to the result? In what
proportions ought they to contribute? If a prece¬
dent is applicable, when do I refuse to follow it?
If no precedent is applicable, how do I reach the
rule that will make a precedent for the future?
If I am seeking logical consistency, the symmetry
of the legal structure, how far shall I seek it? At
what point shall the quest be halted by some
discrepant custom, by some consideration of the
social welfare, by my own or the common stand¬
ards of justice and morals? Into that strange
compound which is brewed daily in the caldron
of the courts, all these ingredients enter in vary¬
ing proportions. I am not concerned to inquire
whether judges ought to be allowed to brew such
a compound at all. I take judge-made law as one
of the existing realities of life. There, before us,

io

INTRODUCTION

is the brew. Not a judge on the bench but has
had a hand in the making. The elements have not
come together by chance. Some principle, how¬
ever unavowed and inarticulate and subcon¬
scious, has regulated the infusion. It may not
have been the same principle for all judges at
any time, nor the same principle for any judge
at all times. But a choice there has been, not a
submission to the decree of Fate; and the con¬
siderations and motives determining the choice,
even if often obscure, do not utterly resist analy¬
sis. In such attempt at analysis as I shall make,
there will be need to distinguish between the
conscious and the subconscious. I do not mean
that even those considerations and motives which
I shall class under the first head are always in
consciousness distinctly, so that they will be
recognized and named at sight. Not infrequently
they hover near the surface. They may, however,
with comparative readiness be isolated and
tagged, and when thus labeled, are quickly ac¬
knowledged as guiding principles of conduct.
More subtle are the forces so far beneath the

ii

INTRODUCTION

surface that they cannot reasonably be classified
as other than subconscious. It is often through
these subconscious forces that judges are kept
consistent with themselves, and inconsistent
with one another. We are reminded by William
James in a telling oage of his lectures on Prag¬
matism that every one of us has in truth an
underlying philosophy of life, even those of us
to whom the names and the notions of philosophy
are unknown or anathema. There is in each of
us a stream of tendency, whether you choose to
call it philosophy or not,1 which gives coherence
and direction to thought and action. Judges can¬
not escape that current any more than other
mortals. All their lives, forces which they do not
recognize and cannot name, have been tugging
at them — inherited instincts, traditional beliefs,
acquired convictions ; and the resultant is an out¬
look on life, a conception of social needs, a sense
in James’s phrase of “the total push and pressure
of the cosmos,” which, when reasons are nicely
balanced, must determine where choice shall fall.

1 Cf. N. M. Butler, “Philosophy,” pp. 18, 43.

12

INTRODUCTION

In this mental background every problem finds
its setting. We may try to see things as ob¬
jectively as we please. None the less, we can
never see them with any eyes except our own.
To that test they are all brought — a form of
pleading or an act of parliament, the wrongs of
paupers or the rights of princes, a village or¬
dinance or a nation’s charter.

1 have little hope that I shall be able to state
the formula which will rationalize this process for
myself, much less for others. We must apply to
the study of judge-made law that method of
quantitative analysis which Mr. Wallas has ap¬
plied with such fine results to the study of poli¬
tics.2 A richer scholarship than mine is requisite
to do the work aright. But until that scholarship
is found and enlists itself in the task, there may
be a passing interest in an attempt to uncover
the nature of the process by one who is himself
an active agent, day by day, in keeping the
process alive. That must be my apology for
these introspective searchings of the spirit.

2 “Human Nature in Politics,” p. 138.

13

INTRODUCTION

Before we can determine the proportions of a
blend, we must know the ingredients to be
blended. Our first inquiry should therefore be:
Where does the judge find the law which he
embodies in his judgment? There are times
when the source is obvious. The rule that fits
the case may be supplied by the constitution or
by statute. If that is so, the judge looks no
farther. The correspondence ascertained, his duty
is to obey. The constitution overrides a statute,
but a statute, if consistent with the constitution,
overrides the law of judges. In this sense, judge-
made law is secondary and subordinate to the
law that is made by legislators. It is true that
codes and statutes do not render the judge super¬
fluous, nor his work perfunctory and mechanical.
There are gaps to be filled. There are doubts and
ambiguities to be cleared. There are hardships
and wrongs to be mitigated if not avoided. In¬
terpretation is often spoken of as if it were noth¬
ing but the search and the discovery of a mean¬
ing which, however obscure and latent, had none
the less a real and ascertainable pre-existence in

14

INTRODUCTION

the legislator’s mind. The process is, indeed,
that at times, but it is often something more.
The ascertainment of intention may be the least
of a judge’s troubles in ascribing meaning to a
statute. “The fact is,” says Gray in his lectures
on the “Nature and Sources of the Law,”3 “that
the difficulties of so-called interpretation arise
when the legislature has had no meaning at
all; when the question which is raised on
the statute never occurred to it; when what
the judges have to do is, not to determine
what the legislature did mean on a point which
was present to its mind, but to guess what it
would have intended on a point not present to its
mind, if the point had been present.”4 So Briitt:5
“One weighty task of the system of the applica¬
tion of law consists then in this, to make more
profound the discovery of the latent meaning of
positive law. Much more important, however, is
the second task which the system serves, namely

3 Sec. 370, p. 165.

4 Cf. Pound, “Courts and Legislation,” 9 Modern
Legal Philosophy Series, p. 226.

5 “Die Kunst der Rechtsanwendung,” p. 72.

15

INTRODUCTION

the filling of the gaps which are found in every
positive law in greater or less measure.” You may
call this process legislation, if you will. In any
event, no system of jus scriptum has been able
to escape the need of it. Today a great school of
continental jurists is pleading for a still wider
freedom of adaptation and construction. The
statute, they say, is often fragmentary and ill-
considered and unjust. The judge as the inter¬
preter for the community of its sense of law and
order must supply omissions, correct uncertain¬
ties, and harmonize results with justice through
a method of free decision — “fibre recherche
scientifique.” That is the view of Geny and
Ehrlich and Gmelin and others.6 Courts are to
“search for fight among the social elements of
every kind that are the living force behind the
facts they deal with.”7 The power thus put in
their hands is great, and subject, like all power,
to abuse; but we are not to flinch from granting
it. In the long run “there is no guaranty of

6 “Science of Legal Method,” 9 Modern Legal Philoso¬
phy Series, pp. 4, 45, 65, 72, 124, 130, 159.

7 Geny, “Methode d’Interpretation et Sources en droit

16

INTRODUCTION

justice,” says Ehrlich,8 “except the personality
of the judge.”9 The same problems of method,
the same contrasts between the letter and
the spirit, are living problems in our own
land and law. Above all in the field of constitu¬
tional law, the method of free decision has be¬
come, I think, the dominant one today. The great
generalities of the constitution have a content
and a significance that vary from age to age. The
method of free decision sees through the tran¬
sitory particulars and reaches what is permanent
behind them. Interpretation, thus enlarged, be¬
comes more than the ascertainment of the mean¬
ing and intent of lawmakers whose collective will
has been declared. It supplements the declara¬
tion, and fills the vacant spaces, by the same
processes and methods that have built up the
customary law. Codes and other statutes may

prive positif,” vol. II, p. 180, sec. 176, ed. 1919; transl.
9 Modem Legal Philosophy Series, p. 45.

8 P. 65, supra; “Freie Rechtsfindung und freie Rechts-
wissenschaft,” 9 Modern Legal Philosophy Series.

9 Cf. Gnaeus Flavius (Kantorowicz), “Der Kampf um
Rechtswissenschaft,” p. 48 : “Von der Kultur des Richters
hangt im letzten Grunde aller Fortschritt der Rechtsent-
wicklung ab.”

17

INTRODUCTION

threaten the judicial function with repression
and disuse and atrophy. The function flourishes
and persists by virtue of the human need to
which it steadfastly responds. Justinian’s pro¬
hibition of any commentary on the product of his
codifiers is remembered only for its futility.10

I will dwell no further for the moment upon
the significance of constitution and statute as
sources of the law. The work of a judge in in¬
terpreting and developing them has indeed its
problems and its difficulties, but they are prob¬
lems and difficulties not different in kind or
measure from those besetting him in other fields.
I think they can be better studied when those
fields have been explored. Sometimes the rule of
constitution or of statute is clear, and then the
difficulties vanish. Even when they are present,
they lack at times some of that element of mys¬
tery which accompanies creative energy. We
reach the land of mystery when constitution and
statute are silent, and the judge must look to

10 Gray, “Nature and Sources of the Law,” sec. 395 ;
Muirhead, “Roman Law,” pp. 399, 400.

18

INTRODUCTION

the common law for the rule that fits the case.
He is the “living oracle of the law” in Black-
stone’s vivid phrase. Looking at Sir Oracle in
action, viewing his work in the dry light of
realism, how does he set about his task?

The first thing he does is to compare the case
before him with the precedents, whether stored
in his mind or hidden in the books. I do not mean
that precedents are ultimate sources of the law,
supplying the sole equipment that is needed for
the legal armory, the sole tools, to borrow Mait¬
land’s phrase,11 “in the legal smithy.” Back of
precedents are the basic juridical conceptions
which are the postulates of judicial reasoning,
and farther back are the habits of life, the in¬
stitutions of society, in which those conceptions
had their origin, and which, by a process of
interaction, they have modified in turn 12 None
the less, in a system so highly developed as our

11 Introduction to Gierke’s “Political Theories of the
Middle Age,” p. viii.

12 Saleilles, “De la Personnalite Juridique,” p. 45;
Ehrlich, “Grundlegung der Soziologie des Rechts,” pp.
34, 35 ; Pound, “Proceedings of American Bar Assn.
1Q19,” p. 455-

19

INTRODUCTION

own, precedents have so covered the ground that
they fix the point of departure from which the
labor of the judge begins. Almost invariably, his
first step is to examine and compare them. If
they are plain and to the point, there may be
need of nothing more. Stare decisis is at least the
everyday working rule of our law. I shall have
something to say later about the propriety of re¬
laxing the rule in exceptional conditions. But un¬
less those conditions are present, the work of
deciding cases in accordance with precedents that
plainly fit them is a process similar in its nature
to that of deciding cases in accordance with a
statute. It is a process of search, comparison, and
little more. Some judges seldom get beyond that
process in any case. Their notion of their duty is
to match the colors of the case at hand against
the colors of many sample cases spread out upon
their desk. The sample nearest in shade supplies
the applicable rule. But, of course, no system of
living law can be evolved by such a process, and
no judge of a high court, worthy of his office,
views the function of his place so narrowly. If

20

INTRODUCTION

that were all there was to our calling, there would
be little of intellectual interest about it. The man
who had the best card index of the cases would
also be the wisest judge. It is when the colors do
not match, when the references in the index fail,
when there is no decisive precedent, that the
serious business of the judge begins. He must
then fashion law for the litigants before him. In
fashioning it for them, he will be fashioning it for
others. The classic statement is Bacon’s: “For
many times, the things deduced to judgment may
be meum and tuum, when the reason and con¬
sequence thereof may trench to point of estate.”13
The sentence of today will make the right and
wrong of tomorrow. If the judge is to pronounce
it wisely, some principles of selection there must
be to guide him among all the potential judg¬
ments that compete for recognition.

In the life of the mind as in life elsewhere,
there is a tendency toward the reproduction of
kind. Every judgment has a generative power.
It begets in its own image. Every precedent, in

13 “Essay on Judicature.”

21

INTRODUCTION

the words of Redlich, has a “directive force for
future cases of the same or similar nature.”14
Until the sentence was pronounced, it was as
yet in equilibrium. Its form and content were
uncertain. Any one of many principles might
lay hold of it and shape it. Once declared, it
is a new stock of descent. It is charged with
vital power. It is the source from which new
principles or norms may spring to shape sen¬
tences thereafter. If we seek the psychological
basis of this tendency, we shall find it, I suppose,
in habit.15 Whatever its psychological basis, it is
one of the living forces of our law. Not all the
progeny of principles begotten of a judgment sur¬
vive, however, to maturity. Those that cannot
prove their worth and strength by the test of ex¬
perience, are sacrificed mercilessly and thrown
into the void. The common law does not work
from pre-established truths of universal and in¬
flexible validity to conclusions derived from them

14 Redlich, “The Case Method in American Law
Schools,” Bulletin No. S, Carnegie Foundation, p. 37.

15 McDougall, “Social Psychology,” p. 354; J. c.
Gray, “Judicial Precedents,” 9 Harvard L. R. 27.

22

INTRODUCTION

deductively. Its method is inductive, and it draws
its generalizations from particulars. The process
has been admirably stated by Munroe Smith: “In
their effort to give to the social sense of justice
articulate expression in rules and in principles,
the method of the lawfinding experts has always
been experimental. The rules and principles of
case law have never been treated as final truths,
but as working hypotheses, continually retested in
those great laboratories of the law, the courts of
justice. Every new case is an experiment; and if
the accepted rule which seems applicable yields
a result which is felt to be unjust, the rule is
reconsidered. It may not be modified at once,
for the attempt to do absolute justice in every
single case would make the development and
maintenance of general rules impossible; but if
a rule continues to work injustice, it will even¬
tually be reformulated. The principles themselves
are continually retested; for if the rules derived
from a principle do not work well, the principle
itself must ultimately be re-examined.”18

is Munroe Smith, “Jurisprudence,” Columbia Uni-

23

INTRODUCTION

The way in which this process of retesting and
reformulating works, may be followed in an ex¬
ample. Fifty years ago, I think it would have
been stated as a general principle that A. may
conduct his business as he pleases, even though
the purpose is to cause loss to B., unless the act
involves the creation of a nuisance.17 Spite
fences were the stock illustration, and the exemp¬
tion from liability in such circumstances was
supposed to illustrate not the exception, but the
rule.18 Such a rule may have been an adequate
working principle to regulate the relations be¬
tween individuals or classes in a simple or homo¬
geneous community. With the growing com¬
plexity of social relations, its inadequacy was
revealed. As particular controversies multiplied
and the attempt was made to test them by the

versity Press, 1909, p. 21; cf. Pound, “Courts and Legis¬
lation,” 7 Am. Pol. Science Rev. 361; 9 Modem Legal
Philosophy Series, p. 214; Pollock, “Essays in Juris¬
prudence and Ethics,” p. 246.

17 Cooley, “Torts,” 1st ed., p. 93; Pollock, “Torts,”
10th ed., p. 21.

18 Phelps v. Nowlen, 72 N. Y. 39; Rideout v. Knox,
148 Mass. 368.

24

INTRODUCTION

old principle, it was found that there was some¬
thing wrong in the results, and this led to a re¬
formulation of the principle itself. Today, most
judges are inclined to say that what was once
thought to be the exception is the rule, and what
was the rule is the exception. A. may never do
anything in his business for the purpose of injur¬
ing another without reasonable and just excuse.19
There has been a new generalization which, ap¬
plied to new particulars, yields results more in
harmony with past particulars, and, what is still
more important, more consistent with the social
welfare. This work of modification is gradual. It
goes on inch by inch. Its effects must be measured
by decades and even centuries. Thus measured,
they are seen to have behind them the power
and the pressure of the moving glacier.

We are not likely to underrate the force that
has been exerted if we look back upon its work.
“There is not a creed which is not shaken, not
an accredited dogma which is not shown to be

Lamb v. Cheney, 227 N. Y. 418; Aikens v. Wis¬
consin, 195 U. S. 194, 204; Pollock, “Torts,” supra.

25

INTRODUCTION

questionable, not a received tradition which does
not threaten to dissolve.”20 Those are the words
of a critic of life and letters writing forty
years ago, and watching the growing scepticism
of his day. I am tempted to apply his words to
the history of the law. Hardly a rule of today
but may be matched by its opposite of yesterday.
Absolute liability for one’s acts is today the
exception; there must commonly be some tinge
of fault, whether willful or negligent. Time was,
however, when absolute liability was the rule.21
Occasional reversions to the earlier type may be
found in recent legislation.22 Mutual promises
give rise to an obligation, and their breach to a
right of action for damages. Time was when the

20 Arnold, “Essays in Criticism,” second series, p. i.

21 Holds worth, “History of English Law,” 2, p. 41 ;
Wigmore, “Responsibility for Tortious Acts,” 7 Harvard
L. R. 315, 383> 441 j 3 Anglo-Am. Legal Essays 474;
Smith, “Liability for Damage to Land,” 33 Harvard
!*• R- 55i j Ames, “Law and Morals,” 22 Harvard L. R.
97, 99 5 Isaacs, “Fault and Liability,” 31 Harvard L. R.
954-

Cf. Duguit, “Les Transformations generates du
droit prive depuis le Code Napoleon,” Continental Legal
Hist. Series, vol. XI, pp. 125, 126, secs. 40, 42.

26

INTRODUCTION

obligation and the remedy were unknown unless
the promise was under seal.23 Rights of action
may be assigned, and the buyer prosecute them
to judgment though he bought for purposes of
suit. Time was when the assignment was im¬
possible, and the maintenance of the suit a crime.
It is no basis today for an action of deceit to
show, without more, that there has been the
breach of an executory promise; yet the breach
of an executory promise came to have a remedy
in our law because it was held to be a deceit.24
These changes or most of them have been
wrought by judges. The men who wrought them
used the same tools as the judges of today. The
changes, as they were made in this case or that,
may not have seemed momentous in the making.
The result, however, when the process was pro¬
longed throughout the years, has been not merely
to supplement or modify; it has been to revolu-

23 Holdsworth, supra, 2, p. 72 ; Ames, “History of
Parol Contracts prior to Assumpsit,” 3 Anglo-Am. Legal
Essays 304.

24 Holdsworth, supra, 3, pp. 330, 336; Ames, “History
of Assumpsit,” 3 Anglo-Am. Legal Essays 275, 276.

27

INTRODUCTION

tionize and transform. For every tendency, one
seems to see a counter-tendency; for every rule
its antinomy. Nothing is stable. Nothing ab¬
solute. All is fluid and changeable. There is an
endless “becoming.” We are back with Heraclitus.
That, I mean, is the average or aggregate im¬
pression which the picture leaves upon the mind.
Doubtless in the last three centuries, some lines,
once wavering, have become rigid. We leave more
to legislatures today, and less perhaps to
judges.25 Yet even now there is change from
decade to decade. The glacier still moves.

In this perpetual flux, the problem which con¬
fronts the judge is in reality a twofold one: he
must first extract from the precedents the under¬
lying principle, the ratio decidendi; he must then
determine the path or direction along which the
principle is to move and develop, if it is not to
wither and die.

The first branch of the problem is the one to
which we are accustomed to address ourselves

25 F. C. Montague in “A Sketch of Legal History,”
Maitland and Montague, p. 161.

28

INTRODUCTION

more consciously than to the other. Cases do not
unfold their principles for the asking. They yield
up their kernel slowly and painfully. The in¬
stance cannot lead to a generalization till we
know it as it is. That in itself is no easy task.
For the thing adjudged comes to us oftentimes
swathed in obscuring dicta, which must be
stripped off and cast aside. Judges differ greatly
in their reverence for the illustrations and com¬
ments and side-remarks of their predecessors, to
make no mention of their own. All agree that
there may be dissent when the opinion is filed.
Some would seem to hold that there must be none
a moment thereafter. Plenary inspiration has
then descended upon the work of the majority.
No one, of course, avows such a belief, and yet
sometimes there is an approach to it in conduct.
I own that it is a good deal of a mystery to me
how judges, of all persons in the world, should
put their faith in dicta. A brief experience on the
bench was enough to reveal to me all sorts of
cracks and crevices and loopholes in my own
opinions when picked up a few months after de-

29

INTRODUCTION

livery, and reread with due contrition. The per¬
suasion that one’s own infallibility is a myth
leads by easy stages and with somewhat greater
satisfaction to a refusal to ascribe infallibility to
others. But dicta are not always ticketed as
such, and one does not recognize them always
at a glance. There is the constant need, as every
law student knows, to separate the accidental
and the non-essential from the essential and in¬
herent. Let us assume, however, that this task
has been achieved, and that the precedent is
known as it really is. Let us assume too that the
principle, latent within it, has been skillfully ex¬
tracted and accurately stated. Only half or less
than half of the work has yet been done. The
problem remains to fix the bounds and the
tendencies of development and growth, to set
the directive force in motion along the right path
at the parting of the ways.

The directive force of a principle may be
exerted along the line of logical progression;
this I will call the rule of analogy or the method
of philosophy; along the line of historical de-

30

THE METHOD OF PHILOSOPHY
velopment; this I will call the method of evolu¬
tion; along the line of the customs of the com¬
munity; this I will call the method of tradition;
along the lines of justice, morals and social wel¬
fare, the mores of the day; and this I will call
the method of sociology.

I have put first among the principles of selec¬
tion to guide our choice of paths, the rule of
analogy or the method of philosophy. In putting
it first, I do not mean to rate it as most im¬
portant. On the contrary, it is often sacrificed to
others. I have put it first because it has, I think,
a certain presumption in its favor. Given a mass
of particulars, a congeries of judgments on re¬
lated topics, the principle that unifies and
rationalizes them has a tendency, and a legitimate
one, to project and extend itself to new cases
within the limits of its capacity to unify and
rationalize. It has the primacy that comes from
natural and orderly and logical succession.
Homage is due to it over every competing prin¬
ciple that is unable by appeal to history or
tradition or policy or justice to make out a

3i

THE METHOD OF PHILOSOPHY
better right. All sorts of deflecting forces may
appear to contest its sway and absorb its power.
At least, it is the heir presumptive. A pretender
to the title will have to fight his way.

Great judges have sometimes spoken as if
the principle of philosophy, i.e., of logical de¬
velopment, meant little or nothing in our law.
Probably none of them in conduct was ever true
to such a faith. Lord Halsbury said in Quinn v.
Leathern, 1901, A. C. 495, 506: “A case is only
an authority for what it actually decides. I en¬
tirely deny that it can be quoted for a proposi¬
tion that may seem to follow logically from it.
Such a mode of reasoning assumes that the law
is necessarily a logical code, whereas every
lawyer must acknowledge that the law is not
always logical at all.”26 All this may be true, but
we must not press the truth too far. Logical
consistency does not cease to be a good because
it is not the supreme good. Holmes has told us

26 Cf. Bailhache, J., in Belfast Ropewalk Co. v.
Bushell, 1918, 1 K. B. 210, 213: “Unfortunately or
fortunately, I am not sure which, our law is not a
science.”

32

THE METHOD OF PHILOSOPHY
in a sentence which is now classic that “the life
of the law has not been logic; it has been experi¬
ence.”27 But Holmes did not tell us that logic
is to be ignored when experience is silent. I am
not to mar the symmetry of the legal structure
by the introduction of inconsistencies and ir-
relevancies and artificial exceptions unless for
some sufficient reason, which will commonly be
some consideration of history or custom or policy
or justice. Lacking such a reason, I must be
logical, just as I must be impartial, and upon
like grounds. It will not do to decide the same
question one way between one set of litigants and
the opposite way between another. “If a group
of cases involves the same point, the parties ex¬
pect the same decision. It would be a gross in¬
justice to decide alternate cases on opposite
principles. If a case was decided against me
yesterday when I was defendant, I shall look for
the same judgment today if I am plaintiff. To
decide differently would raise a feeling of resent¬
ment and wrong in my breast; it would be an

27 “The Common Law,” p. i.

33

THE METHOD OF PHILOSOPHY
infringement, material and moral, of my rights.”28
Everyone feels the force of this sentiment when
two cases are the same. Adherence to precedent
must then be the rule rather than the exception
if litigants are to have faith in the even-handed
administration of justice in the courts. A senti¬
ment like in kind, though different in degree, is
at the root of the tendency of precedent to ex¬
tend itself along the lines of logical develop¬
ment.29 No doubt the sentiment is powerfully
reinforced by what is often nothing but an in¬
tellectual passion for elegantia juris, for sym¬
metry of form and substance.30 That is an ideal
which can never fail to exert some measure of
attraction upon the professional experts who
make up the lawyer class. To the Roman law¬
yers, it meant much, more than it has meant
to English lawyers or to ours, certainly more

28 W. G. Miller, “The Data of Jurisprudence,” p.
335; cf. Gray, “Nature and Sources of the Law,” sec.
420; Salmond, “Jurisprudence,” p. 170.

29 Cf. Geny, “Methode d’Interpretation et Sources
en droit prive positif,” vol. II, p. 119.

30 W. G. Miller, supra, p. 281; Bryce, “Studies in
History and Jurisprudence,” vol. II, p. 629.

34

THE METHOD OF PHILOSOPHY
than it has meant to clients. “The client,”
says Miller in his “Data of Jurisprudence,”31
“cares little for a ‘beautiful’ case! He wishes
it settled somehow on the most favorable terms
he can obtain.” Even that is not always true. But
as a system of case law develops, the sordid
controversies of litigants are the stuff out of
which great and shining truths will ultimately
be shaped. The accidental and the transitory will
yield the essential and the permanent. The judge
who moulds the law by the method of philosophy-
may be satisfying an intellectual craving for
symmetry of form and substance. But he is doing
something more. He is keeping the law true in
its response to a deep-seated and imperious senti¬
ment. Only experts perhaps may be able to gauge
the quality of his work and appraise its signifi¬
cance. But their judgment, the judgment of the
lawyer class, will spread to others, and tinge the
common consciousness and the common faith.
In default of other tests, the method of philoso¬
phy must remain the organon of the courts if

31 p. i.

35

THE METHOD OF PHILOSOPHY
chance and favor are to be excluded, and the
affairs of men are to be governed with the serene
and impartial uniformity which is of the essence
of the idea of law.

You will say that there is an intolerable vague¬
ness in all this. If the method of philosophy is
to be employed in the absence of a better one,
some test of comparative fitness should be fur¬
nished. I hope, before I have ended, to sketch,
though only in the broadest outline, the funda¬
mental considerations by which the choice of
methods should be governed. In the nature of
things they can never be catalogued with preci¬
sion. Much must be left to that deftness in the
use of tools which the practice of an art develops.
A few hints, a few suggestions, the rest must be
trusted to the feeling of the artist. But for the
moment, I am satisfied to establish the method
of philosophy as one organon among several,
leaving the choice of one or the other to be
talked of later. Very likely I have labored unduly
to establish its title to a place so modest. Above
all, in the Law School of Yale University, the

36

THE METHOD OF PHILOSOPHY
title will not be challenged. I say that because
in the work of a brilliant teacher of this school,
the late Wesley Newcomb Hohfeld, I find im¬
pressive recognition of the importance of this
method, when kept within due limits, and some
of the happiest illustrations of its legitimate em¬
ployment. His treatise on “Fundamental Concep¬
tions Applied in Judicial Reasoning” is in reality
a plea that fundamental conceptions be analyzed
more clearly, and their philosophical implica¬
tions, their logical conclusions, developed more
consistently. I do not mean to represent him as
holding to the view that logical conclusions must
always follow the conceptions developed by
analysis. “No one saw more clearly than he that
while the analytical matter is an indispensable
tool, it is not an all-sufficient one for the law¬
yer.”32 “He emphasized over and over again”
that “analytical work merely paves the way for
other branches of jurisprudence, and that with¬
out the aid of the latter, satisfactoiy solutions of

32 Introduction to Hohfeld’s Treatise by W. W.
Cook.

37

THE METHOD OF PHILOSOPHY
legal problems cannot be reached.”33 We must
know where logic and philosophy lead even
though we may determine to abandon them for
other guides. The times will be many when we
can do no better than follow where they point.

Example, if not better than precept, may at
least prove to be easier. We may get some sense
of the class of questions to which a method is
adapted when we have studied the class of ques¬
tions to which it has been applied. Let me
give some haphazard illustrations of conclusions
adopted by our law through the development of
legal conceptions to logical conclusions. A. agrees
to sell a chattel to B. Before title passes, the
chattel is destroyed. The loss falls on the seller
who has sued at law for the price.34 A. agrees
to sell a house and lot. Before title passes, the
house is destroyed. The seller sues in equity for
specific performance. The loss falls upon the

33 Professor Cook’s Introduction.

34 Higgins v. Murray, 73 N. Y. 252, 254; 2 Williston
on Contracts, sec. 962 ; N. Y. Personal Prop. Law, sec.
103a.

38

THE METHOD OF PHILOSOPHY
buyer.35 That is probably the prevailing view,
though its wisdom has been sharply criticized.36
These variant conclusions are not dictated by
variant considerations of policy or justice. They
are projections of a principle to its logical out¬
come, or the outcome supposed to be logical.
Equity treats that as done which ought to be
done. Contracts for the sale of land, unlike most
contracts for the sale of chattels, are within the
jurisdiction of equity. The vendee is in equity
the owner from the beginning. Therefore, the
burdens as well as the benefits of ownership
shall be his. Let me take as another illustration
of my meaning the cases which define the rights
of assignees of choses in action. In the discussion
of these cases, you will find much conflict of
opinion about fundamental conceptions. Some
tell us that the assignee has a legal ownership.37
Others say that his right is purely equitable.88

35 Paine v. Melier, 6 Ves. 349, 352 ; Sewell v. Under¬
hill, 197 N. Y. 168; 2 Williston on Contracts, sec. 931.

36 2 Williston on Contracts, sec. 940.

37 Cook, 29 Harvard L. R. 816, 836.

38 Williston, 30 Harvard L. R. 97; 31 ibid. 822.

39

THE METHOD OF PHILOSOPHY
Given, however, the fundamental conception, all
agree in deducing its consequences by methods
in which the preponderating element is the
method of philosophy. We may find kindred
illustrations in the law of trusts and contracts
and in many other fields. It would be wearisome
to accumulate them.

The directive force of logic does not always
exert itself, however, along a single and unob¬
structed path. One principle or precedent, pushed
to the limit of its logic, may point to one con¬
clusion; another principle or precedent, followed
with like logic, may point with equal certainty to
another. In this conflict, we must choose between
the two paths, selecting one or other, or per¬
haps striking out upon a third, which will be the
resultant of the two forces in combination, or will
represent the mean between extremes. Let me
take as an illustration of such conflict the famous
case of Riggs v. Palmer, 115 N. Y. 506. That
case decided that a legatee who had murdered
his testator would not be permitted by a court
of equity to enjoy the benefits of the will. Con-

40

THE METHOD OF PHILOSOPHY
flicting principles were there in competition for
the mastery. One of them prevailed, and van¬
quished all the others. There was the principle
of the binding force of a will disposing of the
estate of a testator in conformity with law. That
principle, pushed to the limit of its logic, seemed
to uphold the title of the murderer. There was
the principle that civil courts may not add to
the pains and penalties of crimes. That, pushed
to the limit of its logic, seemed again to uphold
his title. But over against these was another
principle, of greater generality, its roots deeply
fastened in universal sentiments of justice, the
principle that no man should profit from his own
inequity or take advantage of his own wrong.
The logic of this principle prevailed over the
logic of the others. I say its logic prevailed. The
thing which really interests us, however, is why
and how the choice was made between one logic
and another. In this instance, the reason is not
obscure. One path was followed, another closed,
because of the conviction in the judicial mind
that the one selected led to justice. Analogies and

41

THE METHOD OF PHILOSOPHY
precedents and the principles behind them were
brought together as rivals for precedence; in the
end, the principle that was thought to be most
fundamental, to represent the larger and deeper
social interests, put its competitors to flight. I
am not greatly concerned about the particular
formula through which justice was attained.
Consistency was preserved, logic received its
tribute, by holding that the legal title passed, but
that it was subjected to a constructive trust.39
A constructive trust is nothing but “the formula
through which the conscience of equity finds ex¬
pression.”40 Property is acquired in such cir¬
cumstances that the holder of the legal title may
not in good conscience retain the beneficial in¬
terest. Equity, to express its disapproval of his
conduct, converts him into a trustee.41 Such
formulas are merely the remedial devices by
which a result conceived of as right and just is

39 Ellerson v. Westcott, 148 N. Y. 149, 154; Ames,
“Lectures on Legal History,” pp. 313, 314.

40 Beatty v. Guggenheim Exploration Co., 225 N. Y.
380, 386.

41 Beatty v. Guggenheim Exploration Co., supra;
Ames, supra.

42

THE METHOD OF PHILOSOPHY
made to square with principle and with the sym¬
metry of the legal system. What concerns me now
is not the remedial device, but rather the under¬
lying motive, the indwelling, creative energy,
which brings such devices into play. The mur¬
derer lost the legacy for which the murder was
committed because the social interest served by
refusing to permit the criminal to profit by his
crime is greater than that served by the preserva¬
tion and enforcement of legal rights of ownership.
My illustration, indeed, has brought me ahead
of my story. The judicial process is there in
microcosm. We go forward with our logic, with
our analogies, with our philosophies, till we reach
a certain point. At first, we have no trouble with
the paths; they follow the same lines. Then they
begin to diverge, and we must make a choice be¬
tween them. History or custom or social utility
or some compelling sentiment of justice or some¬
times perhaps a semi-intuitive apprehension of
the pervading spirit of our law, must come to the
rescue of the anxious judge, and tell him where
to go.

43

THE METHOD OF PHILOSOPHY
It is easy to accumulate examples of the
process — of the constant checking and testing of
philosophy by justice, and of justice by philoso¬
phy. Take the rule which permits recovery with
compensation for defects in cases of substantial,
though incomplete performance. We have often
applied it for the protection of builders who in
trifling details and without evil purpose have de¬
parted from their contracts. The courts had
some trouble for a time, when they were deciding
such cases, to square their justice with their logic.
Even now, an uneasy feeling betrays itself in
treatise and decision that the two fabrics do not
fit. As I had occasion to say in a recent case;
“Those who think more of symmetry and logic
in the development of legal rules than of practi¬
cal adaptation to the attainment of a just result'*
remain troubled by a classification where the
lines of division are so wavering and blurred.”42
I have no doubt that the inspiration of the rule
is a mere sentiment of justice. That sentiment
asserting itself, we have proceeded to surround it
42 Jacobs & Youngs, Inc. v. Kent, 230 N. Y. 239.

44

THE METHOD OF PHILOSOPHY
with the halo of conformity to precedent. Some
judges saw the unifying principle in the law of
quasi-contracts. Others saw it in the distinction
between dependent and independent promises, or
between promises and conditions. All found, how¬
ever, in the end that there was a principle in the
legal armory which, when taken down from the
wall where it was rusting, was capable of furnish¬
ing a weapon for the fight and of hewing a path
to justice. Justice reacted upon logic, sentiment
upon reason, by guiding the choice to be made
between one logic and another. Reason in its
turn reacted upon sentiment by purging it of
what is arbitrary, by checking it when it might
otherwise have been extravagant, by relating it
to method and order and coherence and tradi¬
tion.48

In this conception of the method of logic or
philosophy as one organon among several, I find
nothing hostile to the teachings of continental
jurists who would dethrone it from its place and

43 Cf. Hynes v. N. Y. Central R. R. Co. (231 N. Y.
229, 235).

45

THE METHOD OF PHILOSOPHY
power in systems of jurisprudence other than our
own. They have combated an evil which has
touched the common law only here and there,
and lightly. I do not mean that there are not
fields where we have stood in need of the same
lesson. In some part, however, we have been
saved by the inductive process through which our
case law has developed from evils and dangers
inseparable from the development of law, upon
the basis of the jus scriptum, by a process of
deduction.44 Yet even continental jurists who
emphasize the need of other methods, do not ask
us to abstract from legal principles all their
fructifying power. The misuse of logic or philoso¬
phy begins when its method and its ends are
treated as supreme and final. They can never be
banished altogether. “Assuredly,” says Frangois
Geny,45 “there should be no question of banish¬
ing ratiocination and logical methods from the

44 “Notre droit public, comme notre droit prive, est
un jus scriptum” (Michoud, “La Responsibility de l’etat
a raison des fautes de ses agents,” Revue du droit
public, 1895, p. 273, quoted by Geny, vol. I, p. 40,
sec. 19).

45 Op. cit., vol. I, p. 127, sec. 61.

46

THE METHOD OF PHILOSOPHY
science of positive law.” Even general principles
may sometimes be followed rigorously in the de¬
duction of their consequences. “The abuse,” he
says, “consists, if I do not mistake, in envisaging
ideal conceptions, provisional and purely sub¬
jective in their nature, as endowed with a per¬
manent objective reality. And this false point of
view, which, to my thinking, is a vestige of the
absolute realism of the middle ages, ends in con¬
fining the entire system of positive law, a priori,
within a limited number of logical categories,
which are predetermined in essence, immovable
in basis, governed by inflexible dogmas, and thus
incapable of adapting themselves to the ever
varied and changing exigencies of life.”

In law, as in every other branch of knowl¬
edge, the truths given by induction tend to form
the premises for new deductions. The lawyers
and the judges of successive generations do not
repeat for themselves the process of verification,
any more than most of us repeat the demonstra¬
tions of the truths of astronomy or physics. A
stock of juridical conceptions and formulas is

47

THE METHOD OF PHILOSOPHY
developed, and we take them, so to speak, ready¬
made. Such fundamental conceptions as contract
and possession and ownership and testament and
many others, are there, ready for use. How they
came to be there, I do not need to inquire. I am
writing, not a history of the evolution of law,
but a sketch of the judicial process applied to
law full grown. These fundamental conceptions
once attained form the starting point from which
are derived new consequences, which, at first
tentative and groping, gain by reiteration a new
permanence and certainty. In the end, they be¬
come accepted themselves as fundamental and
axiomatic. So it is with the growth from prece¬
dent to precedent. The implications of a decision
may in the beginning be equivocal. New cases
by commentary and exposition extract the es¬
sence. At last there emerges a rule or principle
which becomes a datum, a point of departure,
from which new lines will be run, from which
new courses will be measured. Sometimes the rule
or principle is found to have been formulated too
narrowly or too broadly, and has to be reframed.

48

THE METHOD OF PHILOSOPHY
Sometimes it is accepted as a postulate of later
reasoning, its origins are forgotten, it becomes a
new stock of descent, its issue unite with other
strains, and persisting permeate the law. You
may call the process one of analogy or of logic
or of philosophy as you please. Its essence in any
event is the derivation of a consequence from a
rule or a principle or a precedent which, accepted
as a datum, contains implicitly within itself the
germ of the conclusion. In all this, I do not use
the word philosophy in any strict or formal
sense. The method tapers down from the syllo¬
gism at one end to mere analogy at the other.
Sometimes the extension of a precedent goes to
the limit of its logic. Sometimes it does not go so
far. Sometimes by a process of analogy it is
carried even farther. That is a tool which no
system of jurisprudence has been able to dis¬
card.46 A rule which has worked well in one field,
or which, in any event, is there whether its work¬
ings have been revealed or not, is carried over
into another. Instances of such a process I group
*6 Ehrlich, “Die Juristische Logik,” pp. 225, 227.

49

THE METHOD OF PHILOSOPHY
under the same heading as those where the nexus
of logic is closer and more binding.47 At bottom
and in their underlying motives, they are phases
of the same method. They are inspired by the
same yearning for consistency, for certainty,
for uniformity of plan and structure. They have
their roots in the constant striving of the mind
for a larger and more inclusive unity, in which
differences will be reconciled, and abnormalities
will vanish.

47 Cf. Geny, op. cit., vol. II, p. 121, sec. 165; also
vol. I, p. 304, sec. 107.

SO

Lecture II. The Methods of
History, Tradition and
Sociology

HE method of philosophy comes in com-

1 petition, however, with other tendencies
which find their outlet in other methods. One of
these is the historical method, or the method of
evolution. The tendency of a principle to expand
itself to the limit of its logic may be counteracted
by the tendency to confine itself within the
limits of its history. I do not mean that even
then the two methods are always in opposition.
A classification which treats them as distinct is,
doubtless, subject to the reproach that it involves
a certain overlapping of the lines and principles
of division. Very often, the effect of history is
to make the path of logic clear.1 Growth may
be logical whether it is shaped by the principle

1 Cf. Holmes, “The Path of the Law,” io Harvard
L. R. 465-

51

HISTORY, TRADITION AND SOCIOLOGY
of consistency with the past or by that of con¬
sistency with some pre-established norm, some
general conception, some “indwelling, and creative
principle.”2 The directive force of the precedent
may be found either in the events that made
it what it is, or in some principle which enables
us to say of it that it is what it ought to be.
Development may involve either an investigation
of origins or an effort of pure reason. Both
methods have their logic. For the moment, how¬
ever, it will be convenient to identify the method
of history with the one, and to confine the
method of logic or philosophy to the other. Some
conceptions of the law owe their existing form
almost exclusively to history. They are not to
be understood except as historical growths. In the
development of such principles, history is likely
to predominate over logic or pure reason. Other
conceptions, though they have, of course, a his¬
tory, have taken form and shape to a larger
extent under the influence of reason or of com-

2 Bryce, “Studies in History and Jurisprudence,” vol.
II, p. 609.

52

HISTORY, TRADITION AND SOCIOLOGY
parative jurisprudence. They are part of the jus
gentium. In the development of such principles
logic is likely to predominate over history. An
illustration is the conception of juristic or cor¬
porate personality with the long train of conse¬
quences which that conception has engendered.
Sometimes the subject matter will lend itself as
naturally to one method as to another. In such
circumstances, considerations of custom or utility
will often be present to regulate the choice. A re¬
siduum will be left where the personality of the
judge, his taste, his training or his bent of mind,
may prove the controlling factor. I do not mean
that the directive force of history, even where
its claims are most assertive, confines the law of
the future to uninspired repetition of the law
of the present and the past. I mean simply that
history, in illuminating the past, illuminates the
present, and in illuminating the present, illu¬
minates the future. “If at one time it seemed
likely,” says Maitland,3 “that the historical spirit
(the spirit which strove to understand the classi-

3 “Collected Papers,” vol. Ill, p. 438.

53

HISTORY, TRADITION AND SOCIOLOGY
cal jurisprudence of Rome and the Twelve
Tables, and the Lex Salica, and law of all ages
and climes) was fatalistic and inimical to reform,
that time already lies in the past. . . . Nowadays
we may see the office of historical research as that
of explaining, and therefore lightening, the pres¬
sure that the past must exercise upon the present,
and the present upon the future. Today we study
the day before yesterday, in order that yesterday
may not paralyze today, and today may not
paralyze tomorrow.”

Let me speak first of those fields where there
can be no progress without history. I think the
law of real property supplies the readiest ex¬
ample.4 No lawgiver meditating a code of laws
conceived the system of feudal tenures. History
built up the system and the law that went with
it. Never by a process of logical deduction from
the idea of abstract ownership could we distin¬
guish the incidents of an estate in fee simple from
those of an estate for life, or those of an estate
for life from those of an estate for years. Upon

4 Techt v. Hughes, 229 N. Y. 222, 240.

54

HISTORY, TRADITION AND SOCIOLOGY
these points, “a page of history is worth a volume
of logic.”5 So it is wherever we turn in the forest
of the law of land. Restraints upon alienation,
the suspension of absolute ownership, contingent
remainders, executory devises, private trusts and
trusts for charities, all these heads of the law are
intelligible only in the light of history, and get
from history the impetus which must shape their
subsequent development. I do not mean that even
in this field, the method of philosophy plays no
part at all. Some of the conceptions of the land
law, once fixed, are pushed to their logical con¬
clusions with inexorable severity. The point is
rather that the conceptions themselves have come
to us from without and not from within, that they
embody the thought, not so much of the present
as of the past, that separated from the past their
form and meaning are unintelligible and arbi¬
trary, and hence that their development, in
order to be truly logical, must be mindful of their
origins. In a measure that is true of most of the

5 Holmes, J., in N. Y. Trust Co. v. Eisner, 256 U. S.
345> 349-

55

HISTORY, TRADITION AND SOCIOLOGY
conceptions of our law. Metaphysical principles
have seldom been their life. If I emphasize the
law of real estate, it is merely as a conspicuous
example. Other illustrations, even though less
conspicuous, abound. “The forms of action we
have buried” says Maitland,6 “but they still rule
us from their graves.” Holmes has the same
thought:7 “If we consider the law of contract,”
he says, “we find it full of history. The distinc¬
tions between debt, covenant and assumpsit are
merely historical. The classification of certain
obligations to pay money, imposed by the law
irrespective of any bargain as quasi-contracts, is
merely historical. The doctrine of consideration
is merely historical. The effect given to a seal is
to be explained by history alone.” The powers
and functions of an executor, the distinctions be¬
tween larceny and embezzlement, the rules of
venue and the jurisdiction over foreign trespass,
these are a few haphazard illustrations of growths
which history has fostered, and which history

6 “Equity and Forms of Action,” p. 296.

7 “The Path of the Law,” 10 Harvard L. R. 472.

56

HISTORY, TRADITION AND SOCIOLOGY
must tend to shape. There are times when the
subject matter lends itself almost indifferently to
the application of one method or another, and the
predilection or training of the judge determines
the choice of paths. The subject has been pene-
tratingly discussed by Pound.8 I borrow one of
his illustrations. Is a gift of movables inter vivos
effective without delivery? The controversy raged
for many years before it was set at rest. Some
judges relied on the analogy of the Roman Law.
Others upon the history of forms of conveyance
in our law. With some, it was the analysis of
fundamental conceptions, followed by the ex¬
tension of the results of analysis to logical con¬
clusions. The declared will to give and to accept
was to have that effect and no more which was
consistent with some pre-established definition
of a legal transaction, an act in the law. With
others, the central thought was not consistency
with a conception, the consideration of what
logically ought to be done, but rather consistency

8 “Juristic Science and the Law,” 31 Harvard L. R.
1047.

57

HISTORY, TRADITION AND SOCIOLOGY
with history, the consideration of what had been
done. I think the opinions in Lumley v. Gye,
2 El. & Bl. 216, which established a right of
action against A. for malicious interference with
a contract between B. and C., exhibit the same
divergent strains, the same variance in emphasis.
Often, the two methods supplement each other.
Which method will predominate in any case,
may depend at times upon intuitions of con¬
venience or fitness too subtle to be formulated,
too imponderable to be valued, too volatile to
be localized or even fully apprehended. Some¬
times the prevailing tendencies exhibited in the
current writings of philosophical jurists may
sway the balance. There are vogues and fashions
in jurisprudence as in literature and art and
dress. But of this there will be more to say when
we deal with the forces that work subconsciously
in the shaping of the law.

If history and philosophy do not serve to fix
the direction of a principle, custom may step in.
When we speak of custom, we may mean more
things than one. “Consuetudo,” says Coke, “is

58

HISTORY, TRADITION AND SOCIOLOGY
one of the maine triangles of the lawes of Eng¬
land; these lawes being divided into common
law, statute law and customs.”9 Here common
law and custom are thought of as distinct.
Not so, however, Blackstone: “This unwritten
or Common Law is properly distinguishable
into three kinds: (i) General customs, which
are the universal rule of the whole Kingdom,
and form the Common Law, in its stricter
and more usual signification. (2) Particular cus¬
toms, which for the most part affect only the
inhabitants of particular districts. (3) Certain
particular laws, which by custom are adopted
and used by some particular courts of pretty
general and extensive jurisdiction.”10

Undoubtedly the creative energy of custom in
the development of common law is less today
than it was in bygone times.11 Even in bygone

9 Coke on Littleton, 62a; Post v. Pearsall, 22 Wend.
440.

i° Blackstone, Comm., pp. 67, 68 ; Gray, “Nature and
Sources of the Law,” p. 266, sec. 598; Sadler, “The Rela¬
tion of Custom to Law,” p. 59.

11 Cf. Gray, supra, sec. 634; Salmond, “Jurispru¬
dence,” p. 143; Geny, op. cit., vol. I, p. 324, sec. in.

59

HISTORY, TRADITION AND SOCIOLOGY
times, its energy was very likely exaggerated by
Blackstone and his followers. “Today we recog¬
nize,” in the words of Pound,12 “that the custom
is a custom of judicial decision, not of popular
action.” It is “doubtful,” says Gray,13 “whether
at all stages of legal history, rules laid down by
judges have not generated custom, rather than
custom generated the rules.” In these days, at all
events, we look to custom, not so much for the
creation of new rules, but for the tests and stand¬
ards that are to determine how established rules
shall be applied. When custom seeks to do more
than this, there is a growing tendency in the law
to leave development to legislation. Judges do not
feel the same need of putting the imprimatur of
law upon customs of recent growth, knocking for
entrance into the legal system, and viewed
askance because of some novel aspect of form
or feature, as they would if legislatures were not
in frequent session, capable of establishing a
title that will be unimpeached and unimpeach-

12 “Common Law and Legislation,” 21 Harvard
L. R. 383, 406.

13 Supra, sec. 634.

60

HISTORY, TRADITION AND SOCIOLOGY
able. But the power is not lost because it is
exercised with caution. “The law merchant,”
says an English judge, “is not fixed and stereo¬
typed, it has not yet been arrested in its growth
by being moulded into a code; it is, to use the
words of Lord Chief Justice Cockburn in Good¬
win v. Roberts, L. R. xo Exch. 346, capable of
being expanded and enlarged to meet the wants
of trade.”14 In the absence of inconsistent stat¬
ute, new classes of negotiable instruments may
be created by mercantile practice.16 The obliga¬
tions of public and private corporations may re¬
tain the quality of negotiability, despite the pres¬
ence of a seal, which at common law would de¬
stroy it. “There is nothing immoral or contrary
to good policy in making them negotiable if the
necessities of commerce require that they should
be so. A mere technical dogma of the courts or
the common law cannot prohibit the commercial
world from inventing or issuing any species of

i4Edelstein v. Schuler, 1902, 2 K. B. 144, iS4! ch
Bechuanaland Exploration Co. v. London Trading
Bank, 1898, 2 Q. B. 658.

15 Cases, supra.

6l

HISTORY, TRADITION AND SOCIOLOGY
security not known in the last century.”10 So, in
the memory of men yet living, the great inven¬
tions that embodied the power of steam and
electricity, the railroad and the steamship, the
telegraph and the telephone, have built up new
customs and new law. Already there is a body
of legal literature that deals with the legal prob¬
lems of the air.

It is, however, not so much in the making of
new rules as in the application of old ones that
the creative energy of custom most often mani¬
fests itself today. General standards of right and
duty are established. Custom must determine
whether there has been adherence or departure.
My partner has the powers that are usual in
the trade. They may be so well known that the
courts will notice them judicially. Such for illus¬
tration is the power of a member of a trading
firm to make or indorse negotiable paper in the
course of the firm’s business. 17 They may be

10 Mercer County v. Hacket, i Wall. 83; cf. Chase
Nat. Bank v. Faurot, 149 N. Y. 532.

17 Lewy v. Johnson, 2 Pet. 186.

62

HISTORY, TRADITION AND SOCIOLOGY
such that the court will require evidence of
their existence.18 The master in the discharge of
his duty to protect the servant against harm
must exercise the degree of care that is commonly
exercised in like circumstance by men of ordinary
prudence. The triers of the facts in determining
whether that standard has been attained, must
consult the habits of life, the everyday beliefs
and practices, of the men and women about
them. Innumerable, also, are the cases where the
course of dealing to be followed is defined by the
customs, or, more properly speaking, the usages,
of a particular trade or market or profession.19
The constant assumption runs throughout the
law that the natural and spontaneous evolutions
of habit fix the limits of right and wrong. A slight
extension of custom identifies it with customary
morality, the prevailing standard of right con¬
duct, the mores of the time.20 This is the point

18 First Nat. Bank v. Farson, 226 N. Y. 218.

19 Irwin v. Williar, no U. S. 499, 5x3; Walls v.
Bailey, 49 N. Y. 464; 2 Williston on Contracts, sec.
649.

20 Cf. Geny, op. cit., vol. I, p. 319, sec. no.

63

HISTORY, TRADITION AND SOCIOLOGY
of contact between the method of tradition and
the method of sociology. They have their roots in
the same soil. Each method maintains the inter¬
action between conduct and order, between life
and law. Life casts the moulds of conduct, which
will some day become fixed as law. Law preserves
the moulds, which have taken form and shape
from life.

Three of the directive forces of our law,
philosophy, history and custom, have now been
seen at work. We have gone far enough to ap¬
preciate the complexity of the problem. We see
that to determine to be loyal to precedents and
to the principles back of precedents, does not
carry us far upon the road. Principles are com¬
plex bundles. It is well enough to say that we
shall be consistent, but consistent with what?
Shall it be consistency with the origins of the
rule, the course and tendency of development?
Shall it be consistency with logic or philosophy
or the fundamental conceptions of jurisprudence
as disclosed by analysis of our own and foreign
systems? All these loyalties are possible. All have

64

HISTORY, TRADITION AND SOCIOLOGY

sometimes prevailed. How are we to choose be¬
tween them? Putting that question aside, how do
we choose between them? Some concepts of the
law have been in a peculiar sense historical
growths. In such departments, history will tend
to give direction to development. In other depart¬
ments, certain large and fundamental concepts,
which comparative jurisprudence shows to be
common to other highly developed systems, loom
up above all others. In these we shall give a
larger scope to logic and symmetry. A broad field
there also is in which rules may, with approxi¬
mately the same convenience, be settled one way
or the other. Here custom tends to assert itself
as the controlling force in guiding the choice of
paths. Finally, when the social needs demand
one settlement rather than another, there are
times when we must bend symmetry, ignore his¬
tory and sacrifice custom in the pursuit of other
and larger ends.

From history and philosophy and custom, we
pass, therefore, to the force which in our day
and generation is becoming the greatest of them

65

HISTORY, TRADITION AND SOCIOLOGY

all, the power of social justice which finds its
outlet and expression in the method of sociology.

The final cause of law is the welfare of society.
The rule that misses its aim cannot per¬
manently justify its existence. “Ethical consid¬
erations can no more be excluded from the ad¬
ministration of justice which is the end and
purpose of all civil laws than one can exclude
the vital air from his room and live.”21 Logic
and history and custom have their place. We
will shape the law to conform to them when
we may; but only within bounds. The end
which the law serves will dominate them all.
There is an old legend that on one occasion God
prayed, and his prayer was “Be it my will that
my justice be ruled by my mercy.” That is a
prayer which we all need to utter at times when
the demon of formalism tempts the intellect with
the lure of scientific order. I do not mean, of
course, that judges are commissioned to set aside
existing rules at pleasure in favor of any other

21 Dillon, “Laws and Jurisprudence of England and
America,’ p. 18, quoted by Pound, 27 Harvard L. R,
73L 733-

66

HISTORY, TRADITION AND SOCIOLOGY
set of rules which they may hold to be expedient
or wise. I mean that when they are called upon
to say how far existing rules are to be extended
or restricted, they must let the welfare of society
fix the path, its direction and its distance. We
are not to forget, said Sir George Jessel, in an
often quoted judgment, that there is this para¬
mount public policy, that we are not lightly to
interfere with freedom of contract.22 So in this
field, there may be a paramount public policy,
one that will prevail over temporary incon¬
venience or occasional hardship, not lightly to
sacrifice certainty and uniformity and order and
coherence. All these elements must be considered.
They are to be given such weight as sound
judgment dictates. They are constituents of
that social welfare which it is our business to
discover.23 In a given instance we may find that
they are constituents of preponderating value. In
others, we may find that their value is subor¬
dinate. We must appraise them as best we can.

22 Printing etc. Registering Co. v. Sampson, L. R.
19 Eq. 462, 465.

23 Cf. Briitt, supra, pp. 161, 163.

67

HISTORY, TRADITION AND SOCIOLOGY
I have said that judges are not commissioned
to make and unmake rules at pleasure in ac¬
cordance with changing views of expediency or
wisdom. Our judges cannot say with Hobbes:
“Princes succeed one another, and one judge
passeth, another cometh; nay heaven and earth
shall pass, but not one tittle of the law of nature
shall pass, for it is the eternal law of God. There¬
fore, all the sentences of precedent judges that
have ever been, cannot altogether make a law
contrary to natural equity, nor any examples of
former judges can warrant an unreasonable sen¬
tence or discharge the present judge of the trouble
of studying what is equity in the case he is to
judge from the principles of his own natural rea¬
son.”24 Nearer to the truth for us are the words
of an English judge: “Our common law system
consists in applying to new combinations of cir¬
cumstances those rules of law which we derive
from legal principles and judicial precedents,
and for the sake of attaining uniformity, con-

24 Hobbes, vol. II, p. 264; quoted by W. G. Miller,
“The Data of Jurisprudence,” p. 399.

68

HISTORY, TRADITION AND SOCIOLOGY
sistency and certainty, we must apply those rules
when they are not plainly unreasonable and in¬
convenient to all cases which arise; and we are
not at liberty to reject them and to abandon all
analogy to them in those in which they have not
yet been judicially applied, because we think that
the rules are not as convenient and reasonable as
we ourselves could have devised.”26 This does not
mean that there are not gaps, yet unfilled, within
which judgment moves untrammeled. Mr. Jus¬
tice Holmes has summed it up in one of his flash¬
ing epigrams: “I recognize without hesitation
that judges must and do legislate, but they do so
only interstitially; they are confined from molar
to molecular motions. A common-law judge could
not say, I think the doctrine of consideration a
bit of historical nonsense and shall not enforce
it in my court.”26 This conception of the legisla¬
tive power of a judge as operating between spaces
is akin to the theory of “gaps in the law” familiar

25 Sir James Parke, afterwards Lord Wensleydale,
in Mirehouse v. Russell, i Cl. & F. 527, 546, quoted by
Ehrlich, “Grundlegung der Soziologie des Rechts”
[1913] , p. 234; cf. Pollock, “Jurisprudence,” p. 323.

28 Southern Pacific Co. v. Jensen, 244 U. S. 205, 221.

69

HISTORY, TRADITION AND SOCIOLOGY
to foreign jurists.27 “The general framework
furnished by the statute is to be filled in for
each case by means of interpretation, that is,
by following out the principles of the statute.
In every case, without exception, it is the busi¬
ness of the court to supply what the statute
omits, but always by means of an interpretative
function.”28 If the statute is interpreted by the
method of “free decision,” the process differs in
degree rather than in kind from the process fol¬
lowed by the judges of England and America in
the development of the common law. Indeed, Ehr¬
lich in a recent book29 quotes approvingly an Eng¬
lish writer, who says30 that “a code would not,
except in a few cases, in which the law at pres¬
ent is obscure, limit any discretion now pos-

27 9 Modern Legal Philosophy Series, pp. 159-163,
172-175; cf. Ehrlich, “Die juristische Logik,” 215, 216;
Zitelmann, “Liicken im Recht,” 23; Briitt, “Die Kunst
der Rechtsandwendung,” p. 75; Stammler, “Lehre von
dem Richtigen Rechts,” p. 271.

28 Kiss, “Equity and Law,” 9 Modem Legal Philoso¬
phy Series, p. 161.

29 “Grundlegung der Soziologie des Rechts” [1913],
P- 234-

30 19 L. Q. R. 15.

70

HISTORY, TRADITION AND SOCIOLOGY
sessed by the judges. It would simply change
the form of the rules by which they are bound.”
I think that statement overshoots the mark. The
fissures in the common law are wider than the
fissures in a statute, at least in the form of
statute common in England and the United
States. In countries where statutes are oftener
confined to the announcement of general prin¬
ciples, and there is no attempt to deal with de¬
tails or particulars, legislation has less tendency
to limit the freedom of the judge. That is why
in our own law there is often greater freedom of
choice in the construction of constitutions than in
that of ordinary statutes. Constitutions are more
likely to enunciate general principles, which must
be worked out and applied thereafter to particu¬
lar conditions. What concerns us now, however,
is not the size of the gaps. It is rather the
principle that shall determine how they are to be
filled, whether their size be great or small. The
method of sociology in filling the gaps, puts its
emphasis on the social welfare.

Social welfare is a broad term. I use it to

7i

HISTORY, TRADITION AND SOCIOLOGY
cover many concepts more or less allied. It may
mean what is commonly spoken of as public
policy, the good of the collective body. In such
cases, its demands are often those of mere ex¬
pediency or prudence. It may mean on the other
hand the social gain that is wrought by ad¬
herence to the standards of right conduct, which
find expression in the mores of the community.
In such cases, its demands are those of religion
or of ethics or of the social sense of justice,
whether formulated in creed or system, or im¬
manent in the common mind. One does not
readily find a single term to cover these and
kindred aims which shade off into one another
by imperceptible gradations. Perhaps we might
fall back with Kohler31 and Briitt32 and Berolz-
heimer33 on the indefinable, but comprehensive
something known as Kultur, if recent history had
not discredited it and threatened odium for

31 Enzyklopadie, Bd. i, D. io; Philosophy of Law, 12
Modern Legal Philosophy Series, p. 58.

32 Supra, p. 133, et seq.

33 “System des Rechts und Wirthschaftsphilosophie,”
Bd. 3, s. 28.

72

HISTORY, TRADITION AND SOCIOLOGY
■those that use it. I have chosen in its stead a
term which, if not precise enough for the philoso¬
pher, will at least be found sufficiently definite
and inclusive to suit the purposes of the judge.

It is true, I think, today in every department
of the law that the social value of a rule has
become a test of growing power and importance.
This truth is powerfully driven home to the
lawyers of this country in the writings of Dean
Pound. “Perhaps the most significant advance in
the modern science of law is the change from
the analytical to the functional attitude.”84 “The
emphasis has changed from the content of the
precept and the existence of the remedy to the
effect of the precept in action and the availa¬
bility and efficiency of the remedy to attain
the ends for which the precept was devised.”35
Foreign jurists have the same thought: “The
whole of the judicial function,” says Gmelin,36

34 Pound, “Administrative Application of Legal
Standards,” Proceedings American Bar Association,
1919, pp. 441, 449-

36 Ibid,., p. 451 ; cf. Pound, “Mechanical Jurispru¬
dence,” 8 Columbia L. R. 603.

36 “Sociological Method,” transl., 9 Modern Legal
Philosophy Series, p. 131.

73

HISTORY, TRADITION AND SOCIOLOGY
“has . . . been shifted. The will of the State, ex¬
pressed in decision and judgment is to bring
about a just determination by means of the
subjective sense of justice inherent in the judge,
guided by an effective weighing of the inter¬
ests of the parties in the light of the opinions
generally prevailing among the community re¬
garding transactions like those in question. The
determination should under all circumstances be
in harmony with the requirements of good faith
in business intercourse and the needs of practical
life, unless a positive statute prevents it; and in
weighing conflicting interests, the interest that
is better founded in reason and more worthy of
protection should be helped to achieve victory.”37
“On the one hand,” says Geny,38 “we are to
interrogate reason and conscience, to discover in
our inmost nature, the very basis of justice; on
the other, we are to address ourselves to social

37 Gmelin, supra; cf. Ehrlich, “Die juristische Logik,”
p. 187 ; Duguit, “Les Transformations du droit depuis le
Code Napoleon,” transl., Continental Legal Hist. Series,
vol. XI, pp. 72, 79.

38 Op. cit., vol. II, p. 92, sec. 159.

74

HISTORY, TRADITION AND SOCIOLOGY
phenomena, to ascertain the laws of their har¬
mony and the principles of order which they
exact.” And again:39 “Justice and general utility,
such will be the two objectives that will direct
our course.”

All departments of the law have been touched
and elevated by this spirit. In some, however,
the method of sociology works in harmony with
the method of philosophy or of evolution or of
tradition. Those, therefore, are the fields where
logic and coherence and consistency must still
be sought as ends. In others, it seems to displace
the methods that compete with it. Those are the
fields where the virtues of consistency must yield
within those interstitial limits where judicial
power moves. In a sense it is true that we are
applying the method of sociology when we pur¬
sue logic and coherence and consistency as the
greater social values. I am concerned for the
moment with the fields in which the method is
in antagonism to others rather than with those
in which their action is in unison. Accurate divi-

39Vol. II, p. 91.

75

HISTORY, TRADITION AND SOCIOLOGY
sion is, of course, impossible. A few broad areas
may, however, be roughly marked as those in
which the method of sociology has fruitful ap¬
plication. Let me seek some illustrations of its
workings. I will look for them first of all in the
field of constitutional law, where the primacy
of this method is, I think, undoubted, then in
certain branches of private law where public
policy, having created rules, must have like
capacity to alter them, and finally in other fields
where the method, though less insistent and per¬
vasive, stands ever in the background, and
emerges to the front when technicality or logic
or tradition may seem to press their claims un¬
duly.

I speak first of the constitution, and in par¬
ticular of the great immunities with which it sur¬
rounds the individual. No one shall be deprived
of liberty without due process of law. Here is a
concept of the greatest generality. Yet it is put
before the courts en bloc. Liberty is not defined.
Its limits are not mapped and charted. How
shall they be known? Does liberty mean the

76

HISTORY, TRADITION AND SOCIOLOGY
same thing for successive generations? May re¬
straints that were arbitrary yesterday be useful
and rational and therefore lawful today? May
restraints that are arbitrary today become use¬
ful and rational and therefore lawful tomorrow?
I have no doubt that the answer to these ques¬
tions must be yes. There were times in our
judicial history when the answer might have been
no. Liberty was conceived of at first as something
static and absolute. The Declaration of Inde¬
pendence had enshrined it. The blood of Revolu¬
tion had sanctified it. The political philosophy
of Rousseau and of Locke and later of Herbert
Spencer and of the Manchester school of econo¬
mists had dignified and rationalized it. Laissez
faire was not only a counsel of caution which
statesmen would do well to heed. It was a cate¬
gorical imperative which statesmen, as well as
judges, must obey. The “nineteenth century
theory” was “one of eternal legal conceptions in¬
volved in the very idea of justice and containing
potentially an exact rule for every case to be
reached by an absolute process of logical deduc-

77

HISTORY, TRADITION AND SOCIOLOGY
tion.”40 The century had not closed, however,
before a new political philosophy became re¬
flected in the work of statesmen and ultimately
in the decrees of courts. The transition is inter¬
estingly described by Dicey in his “Law and
Opinion in England.”41 “The movement from
individualistic liberalism to unsystematic col¬
lectivism” had brought changes in the social
order which carried with them the need of a new
formulation of fundamental rights and duties.
In our country, the need did not assert itself so
soon. Courts still spoke in the phrases of a
philosophy that had served its day.42 Gradually,
however, though not without frequent protest
and intermittent movements backward, a new
conception of the significance of constitutional
limitations in the domain of individual liberty,
emerged to recognition and to dominance. Judge
Hough, in an interesting address, finds the dawn

40 Pound, “Juristic Science and The Law,” 31 Har¬
vard L. R. 1047, 1048.

41 Cf. Duguit, supra.

42 Haines, “The Law of Nature in Federal Decisions,”
25 Yale L. J. 617.

78

HISTORY, TRADITION AND SOCIOLOGY
of the new epoch in 1883, when Hurtado v.
California, no U. S. 516, was argued.43 If the
new epoch had then dawned, it was still ob¬
scured by fog and cloud. Scattered rays of light
may have heralded the coming day. They were
not enough to blaze the path. Even as late as
1905, the decision in Lochner v. N. Y., 198 U. S.
45, still spoke in terms untouched by the light
of the new spirit. It is the dissenting opinion of
Justice Holmes, which men will turn to in the
future as the beginning of an era.44 In the in¬
stance, it was the voice of a minority. In prin¬
ciple, it has become the voice of a new dispensa¬
tion, which has written itself into law. “The
Fourteenth Amendment does not enact Mr. Her¬
bert Spencer’s Social Statics.”45 “A constitution
is not intended to embody a particular economic
theory, whether of paternalism and the organic
relation of the citizen to the state, or of laissez

43 Hough, “Due Process of Law Today,” 32 Harvard
L. R. 218, 227.

44 Cf. Hough, p. 232; also Frankfurter, “Const.
Opinions of Holmes, J.,” 29 Harvard L. R. 683> 687;
Ehrlich, “Die juristische Logik,” pp. 237, 239.

43 198 U. S. 75-

79

HISTORY, TRADITION AND SOCIOLOGY
jaire .”46 “The word liberty in the Fourteenth
Amendment is perverted when it is held to pre¬
vent the natural outcome of a dominant opinion,
unless it can be said that a rational and fair man
necessarily would admit that the statute proposed
would infringe fundamental principles as they
have been understood by the traditions of our
people and our law.”47 That is the conception of
liberty which is dominant today.48 It has its
critics even yet,49 but its dominance is, I think,
assured. No doubt, there will at times be differ¬
ence of opinion when a conception so delicate is
applied to varying conditions.50 At times, indeed,
the conditions themselves are imperfectly dis¬
closed and inadequately known. Many and in¬
sidious are the agencies by which opinion is
poisoned at its sources. Courts have often been

46 P. 75-

47 P. 76.

48 Noble v. State Bank, 219 U. S. 104; Tanner v.
Little, 240 U. S. 369; Hall v. Geiger Jones Co., 242
U. S. 539; Green v. Frazier, 233 U. S. 233; Frankfurter,
supra.

40 Burgess, “Reconciliation of Government and
Liberty.”

50 Adams v. Tanner, 244 U. S. 590.

80

HISTORY, TRADITION AND SOCIOLOGY
led into error in passing upon the validity of a
statute, not from misunderstanding of the law,
but from misunderstanding of the facts. This
happened in New York. A statute forbidding
night work for women was declared arbitrary and
void in 1907.51 In 1915, with fuller knowledge of
the investigations of social workers, a like statute
was held to be reasonable and valid.52 Courts
know today that statutes are to be viewed, not
in isolation or in vacuo, as pronouncements of
abstract principles for the guidance of an ideal
community, but in the setting and the frame¬
work of present-day conditions, as revealed by
the labors of economists and students of the
social sciences in our own country and abroad.53
The same fluid and dynamic conception which
underlies the modem notion of liberty, as secured
to the individual by the constitutional immunity,

51 People v. Williams, 189 N. Y. 131.

62 People v. Schweinler Press, 214 N. Y. 395.

53 Muller v. Oregon, 208 U. S. 412; Pound, “Courts
and Legislation,” 9 Modem Legal Philosophy Series, p.
225; Pound, “Scope and Progress of Sociological Juris¬
prudence,” 25 Harvard L. R. SI3> cf. Brandeis, J., in
Adams v. Tanner, 244 U. S. 590, 600.

81

HISTORY, TRADITION AND SOCIOLOGY
must also underlie the cognate notion of equality.
No state shall deny to any person within its
jurisdiction “the equal protection of the laws.”54
Restrictions, viewed narrowly, may seem to
foster inequality. The same restrictions, when
viewed broadly, may be seen “to be necessary
in the long run in order to establish the equality
of position between the parties in which liberty
of contract begins.”55 Charmont in “La Renais¬
sance du droit naturel,”56 gives neat expression
to the same thought: “On tend a considerer qu’il
n’y a pas de contrat respectable si les parties
n’ont pas ete placees dans les conditions non
seulement de liberte, mais d’egalite. Si l’un des
contractants est sans abri, sans ressources, con-
damne a subir les exigences de l’autre, la liberte
de fait est supprimee.”57

From all this, it results that the content of

64 U. S. Const., 14th Amendment.

55 Holmes, J., dissenting in Coppage v. Kansas, 236
U. S. 1, 27.

56 Montpellier, Coulet et fils., editeurs, 1910.

57 “There is now a tendency to consider no contract
worthy of respect unless the parties to it are in rela¬
tions, not only of liberty, but of equality. If one of the

82

HISTORY, TRADITION AND SOCIOLOGY
constitutional immunities is not constant, but
varies from age to age. “The needs of successive
generations may make restrictions imperative
today, which were vain and capricious to the
vision of times past.”58 “We must never forget,”
in Marshall’s mighty phrase, “that it is a consti¬
tution we are expounding.”59 Statutes are de¬
signed to meet the fugitive exigencies of the
hour. Amendment is easy as the exigencies
change. In such cases, the meaning, once con¬
strued, tends legitimately to stereotype itself in
the form first cast. A constitution states or ought
to state not rules for the passing hour, but
principles for an expanding future. In so far as
it deviates from that standard, and descends into
details and particulars, it loses its flexibility, the
scope of interpretation contracts, the meaning

parties be without defense or resources, compelled to
comply with the demands of the other, the result is
a supression of true freedom.” — Charmont, supra, p.172;
transl. in 7 Modem Legal Philosophy Series, p. no,
sec. 83.

68 Klein v. Maravelas, 219 N. Y. 383, 386.

59 Cf. Frankfurter, supra; McCulloch v. Maryland,
4 Wheat. 407.

83

HISTORY, TRADITION AND SOCIOLOGY
hardens. While it is true to its function, it main¬
tains its power of adaptation, its suppleness, its
play. I think it is interesting to note that even
in the interpretation of ordinary statutes, there
are jurists, at any rate abroad, who maintain
that the meaning of today is not always the
meaning of tomorrow. “The President of the
highest French Court, M. Ballot-Beaupre, ex¬
plained, a few years ago, that the provisions of
the Napoleonic legislation had been adapted to
modern conditions by a judicial interpretation
in ‘le sens evolutij.’ ‘We do not inquire,’ he said,
‘what the legislator willed a century ago, but
what he would have willed if he had known what
our present conditions would be.’ ”60 So Kohler:
“It follows from all this that the interpretation
of a statute must by no means of necessity re¬
main the same forever. To speak of an exclu¬
sively correct interpretation, one which would be
the true meaning of the statute from the begin-

60Munroe Smith, “Jurisprudence,” pp. 29, 30; cf.
Vander Eycken, supra, pp. 383, 384; also Briitt, supra,
p. 62.

84

HISTORY, TRADITION AND SOCIOLOGY
ning to the end of its day, is altogether erro¬
neous.61 I think the instances must be rare, if any
can be found at all, in which this method of
interpretation has been applied in English or
American law to ordinary legislation. I have no
doubt that it has been applied in the past and
with increasing frequency will be applied in the
future, to fix the scope and meaning of the
broad precepts and immunities in state and na¬
tional constitutions. I see no reason why it may
not be applied to statutes framed upon lines
similarly general, if any such there are. We are
to read them, whether the result be contraction
or expansion, in “le sens evolutif.”62

Apposite illustrations may be found in recent
statutes and decisions. It was long ago held by
the Supreme Court that the legislature had the
power to control and regulate a business affected

61 Kohler, “Interpretation of Law,” transl. in 9
Modern Legal Philosophy Series, 192 ; cf. the Report
of Prof. Huber on the German Code, quoted by Geny,
“Technic of Codes,” 9 Modern Legal Philosophy Series,
p. 548; also Geny, “Methode et Sources en droit prive
positif,” vol. I, p. 273.

62 Munroe Smith, supra.

85

HISTORY, TRADITION AND SOCIOLOGY
with “a public use.”63 It is held by the Supreme
Court today that there is a like power where the
business is affected with “a public interest.”64
The business of fire insurance has been brought
within that category.65 A recent decision of an
inferior court has put within the same category
the business of the sale of coal where the emer¬
gency of war or of the dislocation that results
from war brings hardship and oppression in the
train of unfettered competition.66 The advocates
of the recent housing statutes in New York67 pro¬
fess to find in like principles the justification for
new restraints upon ancient rights of property. I
do not suggest any opinion upon the question
whether those acts in any of their aspects may
be held to go too far. I do no more than indicate
the nature of the problem, and the method and
spirit of approach.68

63 Munn v. Illinois, 94 U. S. 1x3.

64 German Alliance Ins. Co. v. Kansas, 233 U. S. 389.

65 German Alliance Ins. Co. v. Kansas, supra.

86 American Coal Mining Co. v. Coal & Food Com¬
mission, U. S. District Court, Indiana, Sept. 6, 1920.

67 L. 1920, chaps. 942 to 953.

68 Since these lectures were written, the statutes have
been sustained: People ex rel. Durham Realty Co.

86

v.

HISTORY, TRADITION AND SOCIOLOGY

Property, like liberty, though immune under
the Constitution from destruction, is not immune
from regulation essential for the common good.
What that regulation shall be, every generation
must work out for itself.89 The generation
which gave us Munn v. Illinois, 94 U. S. 113
(1876), and like cases, asserted the right of regu¬
lation whenever business was “affected with a
public use.” The phrase in its application meant
little more than if it said, whenever the social need
shall be imminent and pressing. Such a formula¬
tion of the principle may have been adequate
for the exigencies of the time. Today there is a
growing tendency in political and juristic thought
to probe the principle more deeply and formulate
it more broadly. Men are saying today that
property, like every other social institution, has
a social function to fulfill. Legislation which de¬
stroys the institution is one thing. Legislation
which holds it true to its function is quite an¬
other. That is the dominant theme of a new and

La Fetra, 230 N. Y. 429; Marcus Brown Holding Co.
v. Feldman, 256 U. S. 170.

69 Green v. Frazier, 253 U. S. 233.

87

HISTORY, TRADITION AND SOCIOLOGY
forceful school of publicists and jurists on the
continent of Europe, in England, and even here.
Among the French, one may find the thought
developed with great power and suggestiveness
by Duguit in his “Transformations generates du
droit prive depuis le Code Napoleon.”70 It is
yet too early to say how far this new conception
of function and its obligations will gain a lodg¬
ment in our law. Perhaps we shall find in the
end that it is little more than Munn v. Illinois
in the garb of a new philosophy. I do not attempt
to predict the extent to which we shall adopt it,
or even to assert that we shall adopt it at all.
Enough for my purpose at present that new times
and new manners may call for new standards and
new rules.

The courts, then, are free in marking the
limits of the individual’s immunities to shape
their judgments in accordance with reason and
justice. That does not mean that in judging the
validity of statutes they are free to substitute

70 Transl., Continental Legal Hist. Series, vol. XI,
p. 74) sec. 6, et seq.; for a more extreme view, see R. H.
Tawney, “The Acquisitive Society.”

88

HISTORY, TRADITION AND SOCIOLOGY
their own ideas of reason and justice for those
of the men and women whom they serve. Their
standard must be an objective one. In such
matters, the thing that counts is not what I be¬
lieve to be right. It is what I may reasonably
believe that some other man of normal intellect
and conscience might reasonably look upon as
right. “While the courts must exercise a judg¬
ment of their own, it by no means is true that
every law is void which may seem to the judges
who pass upon it excessive, unsuited to its os¬
tensible end, or based upon conceptions of moral¬
ity with which they disagree. Considerable lati¬
tude must be allowed for difference of view as
well as for possible peculiar conditions which this
court can know but imperfectly, if at all. Other¬
wise a constitution, instead of embodying only
relatively fundamental rules of right, as generally
understood by all English-speaking communities,
would become the partisan of a particular set of
ethical or economical opinions, which by no
means are held semper ubique et ab omnibus.”'11

71 Otis v. Parker, 187 U. S. 608.

89

HISTORY, TRADITION AND SOCIOLOGY
Here as so often in the law, “the standard of
conduct is external, and takes no account of the
personal equation of the man concerned.”72 “The
interpreter,” says Brlitt,73 “must above all things
put aside his estimate of political and legislative
values, and must endeavor to ascertain in a
purely objective spirit what ordering of the social
life of the community comports best with the
aim of the law in question in the circumstances
before him.” Some fields of the law there are, in¬
deed, where there is freer scope for subjective
vision. Of these we shall say more hereafter. The
personal element, whatever its scope in other
spheres, should have little, if any, sway in de¬
termining the limits of legislative power. One de¬
partment of the government may not force upon
another its own standards of propriety. “It must
be remembered that legislatures are ultimate
guardians of the liberties and welfare of the
people in quite as great a degree as courts.”74

72 The Germanic, 196 U. S. 589, 596.

73 “Die Kunst der Rechtsanwendung,” p. 57.

74 Missouri, K. & T. Co. v. May, 194 U. S. 267, 270;
People v. Crane, 214 N. Y. 154, 173.

90

HISTORY, TRADITION AND SOCIOLOGY

Some critics of our public law insist that the
power of the courts to fix the limits of permissible
encroachment by statute upon the liberty of the
individual is one that ought to be withdrawn.75
It means, they say, either too much or too little.
If it is freely exercised, if it is made an excuse
for imposing the individual beliefs and philoso¬
phies of the judges upon other branches of the
government, if it stereotypes legislation within
the forms and limits that were expedient in the
nineteenth or perhaps the eighteenth century, it
shackles progress, and breeds distrust and suspi¬
cion of the courts. If, on the other hand, it is in¬
terpreted in the broad and variable sense which I
believe to be the true one, if statutes are to be
sustained unless they are so plainly arbitrary and
oppressive that right-minded men and women
could not reasonably regard them otherwise, the
right of supervision, it is said, is not worth the
danger of abuse. “There no doubt comes a time
when a statute is so obviously oppressive and ab-

75 Cf. Collins, “The 14th Amendment and the States,”
pp. 158, 166.

91

HISTORY, TRADITION AND SOCIOLOGY
surd that it can have no justification in any sane
polity.”76 Such times may indeed come, yet only
seldom. The occasions must be few when legisla¬
tures will enact a statute that will merit con¬
demnation upon the application of a test so
liberal ; and if carelessness or haste or momentary
passion may at rare intervals bring such statutes
into being with hardship to individuals or classes,
we may trust to succeeding legislatures for the
undoing of the wrong. That is the argument of
the critics of the existing system. My own belief
is that it lays too little stress on the value of the
“imponderables.” The utility of an external
power restraining the legislative judgment is not
to be measured by counting the occasions of its
exercise. The great ideals of liberty and equality
are preserved against the assaults of opportunism,
the expediency of the passing hour, the erosion of
small encroachments, the scorn and derision of
those who have no patience with general prin¬
ciples, by enshrining them in constitutions, and

76 Learned Hand, “Due Process of Law and the
Eight Hour Day,” 21 Harvard L. R. 495, 508.

92

HISTORY, TRADITION AND SOCIOLOGY
consecrating to the task of their protection a
body of defenders. By conscious or subconscious
influence, the presence of this restraining power,
aloof in the background, but none the less always
in reserve, tends to stabilize and rationalize the
legislative judgment, to infuse it with the glow
of principle, to hold the standard aloft and
visible for those who must run the race and keep
the faith.77 I do not mean to deny that there
have been times when the possibility of judi¬
cial review has worked the other way. Legis¬
latures have sometimes disregarded their own
responsibility, and passed it on to the courts.
Such dangers must be balanced against those of
independence from all restraint, independence on
the part of public officers elected for brief terms,
without the guiding force of a continuous tradi¬
tion. On the whole, I believe the latter dangers
to be the more formidable of the two. Great
maxims, if they may be violated with impunity,
are honored often with lip-service, which passes

77 Cf. Laski, “Authority in the Modern State,” pp.
62, 63.

93

HISTORY, TRADITION AND SOCIOLOGY
easily into irreverence. The restraining power of
the judiciary does not manifest its chief worth
in the few cases in which the legislature has
gone beyond the lines that mark the limits of dis¬
cretion. Rather shall we find its chief worth in
making vocal and audible the ideals that might
otherwise be silenced, in giving them continuity
of life and of expression, in guiding and directing
choice within the limits where choice ranges.
This function should preserve to the courts the
power that now belongs to them, if only the
power is exercised with insight into social values,
and with suppleness of adaptation to changing
social needs.

I pass to another field where the dominance of
the method of sociology may be reckoned as as¬
sured. There are some rules of private law which
have been shaped in their creation by public
policy, and this, not merely silently or in conjunc¬
tion with other forces, but avowedly, and almost,
if not quite, exclusively. These, public policy, as
determined by new conditions, is competent to
change. I take as an illustration modern decisions

94

HISTORY, TRADITION AND SOCIOLOGY
which have liberalized the common law rule con¬
demning contracts in restraint of trade. The
courts have here allowed themselves a freedom
of action which in many branches of the law
they might be reluctant to avow. Lord Watson
put the matter bluntly in Nordenfeldt v. Maxim,
Nordenfeldt Guns & Ammunition Co. L. R.
1894 App. Cas. 535, 553: “A series of decisions
based upon grounds of public policy, however
eminent the judges by whom they were delivered,
cannot possess the same binding authority as
decisions which deal with and formulate princi¬
ples which are purely legal. The course of policy
pursued by any country in relation to, and for
promoting the interests of, its commerce must,
as time advances and as its commerce thrives,
undergo change and development from various
causes which are altogether independent of the
action of its courts. In England, at least, it is
beyond the jurisdiction of her tribunals to mould
and stereotype national policy. Their function,
when a case like the present is brought before
them, is, in my opinion, not necessarily to ac-

95

HISTORY, TRADITION AND SOCIOLOGY
cept what was held to have been the rule of
policy a hundred or a hundred and fifty years
ago, but to ascertain, with as near an approach
to accuracy as circumstances permit, what is the
rule of policy for the then present time. When
that rule has been ascertained, it becomes their
duty to refuse to give effect to a private contract
which violates the rule, and would, if judicially
enforced, prove injurious to the community.” A
like thought finds expression in the opinions of
our own courts. “Arbitrary rules which were
originally well founded have thus been made to
yield to changed conditions, and underlying prin¬
ciples are applied to existing methods of doing
business. The tendencies in most of the American
courts are in the same direction.”78 I think we
may trace a like development in the attitude of
the courts toward the activities of labor unions.
The suspicion and even hostility of an earlier
generation found reflection in judicial decisions
which a changing conception of social values

78 Knowlton, J., in Anchor Electric Co. v. Hawkes,
171 Mass. 101, 104.

96

HISTORY, TRADITION AND SOCIOLOGY
has made it necessary to recast.79 Some remnants
of the older point of view survive, but they are
remnants only. The field is one where the law
is yet in the making or better perhaps in the re¬
making. We cannot doubt that its new form will
bear an impress of social needs and values which
are emerging even now to recognition and to
power.

79 Cf. Laski, “Authority in the Modem State,” p. 39.

97

Lecture III. The Method of
Sociology. The Judge as
a Legislator

I HAVE chosen these branches of the law
merely as conspicuous illustrations of the
application by the courts of the method of
sociology. But the truth is that there is no branch
where the method is not fruitful. Even when it
does not seem to dominate, it is always in reserve.
It is the arbiter between other methods, de¬
termining in the last analysis the choice of each,
weighing their competing claims, setting bounds
to their pretensions, balancing and moderating
and harmonizing them all. Few rules in our time
are so well established that they may not be
called upon any day to justify their existence
as means adapted to an end. If they do not func¬
tion, they are diseased. If they are diseased, they
must not propagate their kind. Sometimes they
are cut out and extirpated altogether. Sometimes

98

THE METHOD OF SOCIOLOGY
they are left with the shadow of continued life,
but sterilized, truncated, impotent for harm.

We get a striking illustration of the force of
logical consistency, then of its gradual breaking
down before the demands of practical conven¬
ience in isolated or exceptional instances, and
finally of the generative force of the exceptions
as a new stock, in the cases that deal with the
right of a beneficiary to recover on a contract.
England has been logically consistent and has
refused the right of action altogether. New York
and most states yielded to the demands of con¬
venience and enforced the right of action, but
at first only exceptionally and subject to many
restrictions. Gradually the exceptions broadened
till today they have left little of the rule.1 It
survives chiefly in those cases where intention
would be frustrated or convenience impaired by
the extension of the right of action to others than
the contracting parties.2 Rules derived by a
process of logical deduction from pre-established

1 Seaver v. Ransom, 224 N. Y. 233.

2 Fosmire v. National Surety Co., 229 N. Y. 44.

99

THE METHOD OF SOCIOLOGY
conceptions of contract and obligation have
broken down before the slow and steady and
erosive action of utility and justice.3

We see the same process at work in other
fields. We no longer interpret contracts with
meticulous adherence to the letter when in con¬
flict with the spirit. We read covenants into
them by implication when we find them “instinct
with an obligation” imperfectly expressed. “The
law has outgrown its primitive stage of formalism
when the precise word was the sovereign talisman,
and every slip was fatal.”4 Perhaps it is in the
field of procedure that we have witnessed the
chief changes; though greater ones must yet be
wrought. Indictments and civil pleadings are
viewed with indulgent eyes. Rulings upon ques¬
tions of evidence are held with increasing fre¬
quency to come within the discretion of the judge
presiding at the trial. Errors are no longer ground
for the upsetting of judgments with the ensuing
horror of new trials, unless the appellate court

3 Cf. Duguit, op. cit., Continental Legal Hist. Series,
vol. XI, p. 120, sec. 36.

4 Wood v. Duff Gordon, 222 N. Y. 88.

IOO

THE METHOD OF SOCIOLOGY
is satisfied that they have affected the result.
Legislation has sometimes been necessary to free
us from the old fetters. Sometimes the con¬
servatism of judges has threatened for an interval
to rob the legislation of its efficacy.5 This danger
was disclosed in the attitude of the courts toward
the reforms embodied in codes of practice, in the
days when they were first enacted.6 Precedents
established in those times exert an unhappy in¬
fluence even now. None the less, the tendency
today is in the direction of a growing liberalism.
The new spirit has made its way gradually; and
its progress, unnoticed step by step, is visible in
retrospect as we look back upon the distance
traversed. The old forms remain, but they are
filled with a new content. We are getting away
from what Ehrlich calls “die spielerische und
die mathematische Entscheidung,”7 the concep¬
tion of a lawsuit either as a mathematical prob-

5 Kelso v. Ellis, 224 N. Y. 528, 536, 537; California
Packing Co. v. Kelly S. & D. Co., 228 N. Y. 49.

6 Pound, “Common Law and Legislation,” 21 Har¬
vard L. R. 383, 387.

7 Ehrlich, “Die juristische Logik,” p. 295; cf. pp. 294,
296.

IOI

THE METHOD OF SOCIOLOGY
lem or as a sportsman’s game. Our own Wigmore
has done much to make that conception out of
date.8 We are thinking of the end which the law
serves, and fitting its rules to the task of service.

This conception of the end of the law as de¬
termining the direction of its growth, which was
Jhering’s great contribution to the theory of
jurisprudence,9 finds its organon, its instrument,
in the method of sociology. Not the origin, but
the goal, is the main thing. There can be no
wisdom in the choice of a path unless we know
where it will lead. The teleological conception of
his function must be ever in the judge’s mind.
This means, of course, that the juristic philoso¬
phy of the common law is at bottom the philoso¬
phy of pragmatism.10 Its truth is relative, not
absolute. The rule that functions well produces

8 See his Treatise on Evidence, passim.

9 Jhering, “Zweckim Recht,” 5 Modern Legal Philoso¬
phy Series; also Geny, op. cit., vol. I, p. 8; Pound,
“Scope and Purpose of Sociological Jurisprudence,” 25
Harvard L. R. 140, 141, 145; Pound, “Mechanical
Jurisprudence,” 8 Columbia L. R. 603, 610.

10 Pound, “Mechanical Jurisprudence,” 8 Columbia
L. R. 603, 609.

102

THE JUDGE AS A LEGISLATOR
a title deed to recognition. Only in determining
how it functions we must not view it too nar¬
rowly. We must not sacrifice the general to the
particular. We must not throw to the winds the
advantages of consistency and uniformity to do
justice in the instance.11 We must keep within
those interstitial limits which precedent and
custom and the long and silent and almost inde¬
finable practice of other judges through the
centuries of the common law have set to judge-
made innovations. But within the limits thus
set, within the range over which choice moves,
the final principle of selection for judges, as for
legislators, is one of fitness to an end. “Le but
est la vie interne, l’ame cachee, mais generatrice,
de tous les droits.”12 We do not pick our rules
of law full-blossomed from the trees. Every judge
consulting his own experience must be conscious
of times when a free exercise of will, directed of

11 Cf. Briitt, supra, pp. 161, 163.

12 Saleilles, “De la Personnalite Juridique,” p. 497.

“Avec Jhering nous resterons des realistes, mais

avec lui aussi nous serons des idealistes, attaches a l’idee
de but et de finalite sodale.” — Saleilles, p. 516.

103

THE JUDGE AS A LEGISLATOR
set purpose to the furtherance of the common
good, determined the form and tendency of a rule
which at that moment took its origin in one
creative act. Savigny’s conception of law as
something realized without struggle or aim or
purpose, a process of silent growth, the fruition
in life and manners of a people’s history and
genius, gives a picture incomplete and partial.
It is true if we understand it to mean that the
judge in shaping the rules of law must heed the
mores of his day. It is one-sided and therefore
false in so far as it implies that the mores of the
day automatically shape rules which, full grown
and ready made, are handed to the judge.13
Legal norms are confused with legal principles —
Entscheidungsnormen with Rechtssdtze ,14 Law is,
indeed, an historical growth, for it is an expres¬
sion of customary morality which develops
silently and unconsciously from one age to an-

13 Cf. Ehrlich, “Grundlegung der Soziologie des
Rechts,” pp. 366, 368; Pound, “Courts and Legislation,”
9 Modern Legal Philosophy Series, p.212; Gray, “Nature
and Sources of Law,” secs. 628, 650; Vinogradoff, “Out¬
lines of Historical Jurisprudence,” p. 135.

14 Ehrlich, supra.

104

THE JUDGE AS A LEGISLATOR
other. That is the great truth in Savigny’s theory
of its origin. But law is also a conscious or pur¬
posed growth, for the expression of customary
morality will be false unless the mind of the
judge is directed to the attainment of the moral
end and its embodiment in legal forms.15 Noth¬
ing less than conscious effort will be adequate if
the end in view is to prevail. The standards or
patterns of utility and morals will be found by
the judge in the life of the community. They
will be found in the same way by the legislator.
That does not mean, however, that the work of
the one any more than that of the other is a
replica of nature’s forms.

There has been much debate among foreign
jurists whether the norms of right and useful
conduct, the patterns of social welfare, are to be
found by the judge in conformity with an objec¬
tive or a subjective standard. Opposing schools
of thought have battled for each view.16 At times,

15 Cf. Geny, op. cit., vol. I, p. 263, sec. 92.

16 For a clear and interesting summary, see Briitt,
supra, p. 101, et seq.; cf. Geny, op. cit., vol. I, p. 221;
and contrast Flavius, op. cit., p. 87.

105

THE JUDGE AS A LEGISLATOR
the controversy has seemed to turn upon the
use of words and little more. So far as the distinc¬
tion has practical significance, the traditions of
our jurisprudence commit us to the objective
standard. I do not mean, of course, that this ideal
of objective vision is ever perfectly attained. We
cannot transcend the limitations of the ego and
see anything as it really is. None the less, the
ideal is one to be striven for within the limits of
our capacity. This truth, when clearly perceived,
tends to unify the judge’s function. His duty to
declare the law in accordance with reason and jus¬
tice is seen to be a phase of his duty to declare it
in accordance with custom. It is the customary
morality of right-minded men and women which
he is to enforce by his decree. A jurisprudence
that is not constantly brought into relation to
objective or external standards, incurs the risk
of degenerating into what the Germans call “Die
Gefiihlsj urisprudenz, ” a jurisprudence of mere
sentiment or feeling.17 A judicial judgment, says
Stammler, “should be a judgment of objective

17 Briitt, supra, pp. ioi-iii.

106

THE JUDGE AS A LEGISLATOR
right, and no subjective and free opinion; a
verdict and not a mere personal fiat. Evil stands
the case when it is to be said of a judicial decree
as the saying goes in the play of the ‘Two Gen¬
tlemen of Verona’ (Act I, sc. ii) :

“ ‘I have no other but a woman’s reason;

I think him so, because I think him so.’ ”18

Scholars of distinction have argued for a more
subjective standard. “We all agree,” says Pro¬
fessor Gray,19 “that many cases should be de¬
cided by the courts on notions of right and
wrong, and, of course, everyone will agree that
a judge is likely to share the notions of right and
wrong prevalent in the community in which he
lives; but suppose in a case where there is
nothing to guide him but notions of right and
wrong, that his notions of right and wrong differ
from those of the community — which ought he
to follow — his own notions, or the notions of the
community? Mr. Carter’s theory [“Origin and
Sources of Law,” J. C. Carter] requires him to

18 Stammler, “Richtiges Recht,” s. 162, quoted by
Briitt, supra, p. 104.

19 “Nature and Sources of Law,” sec. 610.

107

THE JUDGE AS A LEGISLATOR
say that the judge must follow the notions of the
community. I believe that he should follow his
own notions.” The hypothesis that Professor
Gray offers us, is not likely to be realized in
practice. Rare indeed must be the case when,
with conflicting notions of right conduct, there
will be nothing else to sway the balance. If, how¬
ever, the case supposed were here, a judge, I
think, would err if he were to impose upon the
community as a rule of life his own idiosyncrasies
of conduct or belief. Let us, suppose, for illustra¬
tion, a judge who looked upon theatre-going as
a sin. Would he be doing right if, in a field where
the rule of law was still unsettled, he permitted
this conviction, though known to be in conflict
with the dominant standard of right conduct, to
govern his decision? My own notion is that he
would be under a duty to conform to the ac¬
cepted standards of the community, the mores
of the times. This does not mean, however, that
a judge is powerless to raise the level of prevail¬
ing conduct. In one field or another of activity,
practices in opposition to the sentiments and

108

THE JUDGE AS A LEGISLATOR
standards of the age may grow up and threaten
to intrench themselves if not dislodged. Despite
their temporary hold, they do not stand com¬
parison with accepted norms of morals. Indolence
or passivity has tolerated what the considerate
judgment of the community condemns. In such
cases, one of the highest functions of the judge
is to establish the true relation between conduct
and profession. There are even times, to speak
somewhat paradoxically, when nothing less than
a subjective measure will satisfy objective stand¬
ards. Some relations in life impose a duty to
act in accordance with the customary morality
and nothing more. In those the customary
morality must be the standard for the judge.
Caveat emptor is a maxim that will often have
to be followed when the morality which it ex¬
presses is not that of sensitive souls. Other rela¬
tions in life, as, e.g., those of trustee and
beneficiary, or principal and surety, impose a
duty to act in accordance with the highest stand¬
ards which a man of the most delicate conscience
and the nicest sense of honor might impose upon

109

THE JUDGE AS A LEGISLATOR
himself. In such cases, to enforce adherence to
those standards becomes the duty of the judge.
Whether novel situations are to be brought
within one class of relations or within the other
must be determined, as they arise, by considera¬
tions of analogy, of convenience, of fitness, and
of justice.

The truth, indeed, is, as I have said, that the
distinction between the subjective or individual
and the objective or general conscience, in the
field where the judge is not limited by established
rules, is shadowy and evanescent, and tends to
become one of words and little more. For the
casuist and the philosopher, it has its speculative
interest. In the practical administration of jus¬
tice, it will seldom be decisive for the judge.
This is admitted by Briitt, one of the staunchest
upholders of the theory of objective right.20 The
perception of objective right takes the color of
the subjective mind. The conclusions of the
subjective mind take the color of customary
practices and objectified beliefs. There is con-

20 Supra, p. 139.

no

THE JUDGE AS A LEGISLATOR
stant and subtle interaction between what is
without and what is within. We may hold, on the
one side, with Tarde and his school, that all
social innovations come “from individual inven¬
tions spread by imitation,”21 or on the other side,
with Durkheim and his school, that all such
innovations come “through the action of the
social mind.”22 In either view, whether the im¬
pulse spreads from the individual or from society,
from within or from without, neither the com¬
ponents nor the mass can work in independence
of each other. The personal and the general mind
and will are inseparably united. The difference,
as one theory of judicial duty or the other pre¬
vails, involves at most a little change of em¬
phasis, of the method of approach, of the point
of view, the angle, from which problems are en¬
visaged. Only dimly and by force of an influence
subconscious, or nearly so, will the difference be
reflected in the decisions of the courts.

21 Barnes, “Durkheim’s Political Theory,” 35 Pol.
Science Quarterly, p. 239.

22 Ibid,.; cf. Barker, ‘‘Political Thought from Spencer
to Today,” pp. 151, i53> i7S¬

ill

THE JUDGE AS A LEGISLATOR
My analysis of the judicial process comes then
to this, and little more: logic, and history, and
custom, and utility, and the accepted standards
of right conduct, are the forces which singly or
in combination shape the progress of the law.
Which of these forces shall dominate in any
case, must depend largely upon the comparative
importance or value of the social interests that
will be thereby promoted or impaired.23 One of
the most fundamental social interests is that
law shall be uniform and impartial. There must
be nothing in its action that savors of prejudice
or favor or even arbitrary whim or fitfulness.
Therefore in the main there shall be adherence
to precedent. There shall be symmetrical develop¬
ment, consistently with history or custom when
history or custom has been the motive force, or
the chief one, in giving shape to existing rules,
and with logic or philosophy when the motive
power has been theirs. But symmetrical develop¬
ment may be bought at too high a price. Uni-

23 Vander Eycken, “Methode Positive de l’lnterpreta-
tion juridique,” p. 59; Ehrlich, “Die juristische Logik,”
p. 187.

1 1 2

THE JUDGE AS A LEGISLATOR
formity ceases to be a good when it becomes
uniformity of oppression. The social interest
served by symmetry or certainty must then be
balanced against the social interest served by
equity and fairness or other elements of social
welfare. These may enjoin upon the judge the
duty of drawing the line at another angle, of
staking the path along new courses, of marking a
new point of departure from which others who
come after him will set out upon their journey.

If you ask how he is to know when one in¬
terest outweighs another, I can only answer that
he must get his knowledge just as the legislator
gets it, from experience and study and reflection ;
in brief, from life itself. Here, indeed, is the
point of contact between the legislator’s work
and his. The choice of methods, the appraisement
of values, must in the end be guided by like
considerations for the one as for the other. Each
indeed is legislating within the limits of his
competence. No doubt the limits for the judge
are narrower. He legislates only between gaps.
He fills the open spaces in the law. How far he

THE JUDGE AS A LEGISLATOR
may go without traveling beyond the walls of
the interstices cannot be staked out for him
upon a chart. He must learn it for himself as he
gains the sense of fitness and proportion that
comes with years of habitude in the practice of
an art. Even within the gaps, restrictions not
easy to define, but felt, however impalpable they
may be, by every judge and lawyer, hedge and
circumscribe his action. They are established by
the traditions of the centuries, by the example
of other judges, his predecessors and his col¬
leagues, by the collective judgment of the pro¬
fession, and by the duty of adherence to the
pervading spirit of the law. “II ne peut inter¬
vene,” says Charmont,24 “que pour suppleer les
sources formelles, mais il n’a pas, dans cette
mesure meme, toute latitude pour creer des
regies de droit. II ne peut ni faire echec aux
principes generaux de notre organisation juri-
dique, explicitement on implicitement consacres,
ni formuler une reglementation de detail pour
l’exercise de certains droits, en etablissant des

24 “La Renaissance du droit naturel,” p. 181.

THE JUDGE AS A LEGISLATOR
delais, des formalites, des regies de publicite.”25
None the less, within the confines of these open
spaces and those of precedent and tradition,
choice moves with a freedom which stamps its
action as creative. The law which is the resulting
product is not found, but made. The process,
being legislative, demands the legislator’s wisdom.

25 “He may intervene only to supplement the formal
authorities, and even in that field there are limits to his
discretion in establishing rules of law. He may neither
restrict the scope of the general principles of our juridi¬
cal organization, explicitly or implicitly sanctioned, nor
may he lay down detailed regulations governing the
exercise of given rights, by introducing delays,
formalities, or rules of publicity.” — Charmont, supra,
transl. in 7 Modern Legal Philosophy Series, p. 120, sec.
91. Cf. Jhering, “Law as a Means to an End” (5 Modem
Legal Philosophy Series: Introduction by W. M. Gel-
dart, p. xlvi) : “The purposes of law are embodied in
legal conceptions which must develop in independ¬
ence and cannot at every step be called upon to
conform to particular needs. Otherwise system and
certainty would be unattainable. But this autonomy of
law, if it were only because of excess or defects of
logic, will lead to a divergence between law and the
needs of life, which from time to time calls for correc¬
tion. . . . How far if at all the needful changes can
or ought to be carried out by judicial decisions or the
development of legal theory, and how far the interven¬
tion of the legislator will be called for, is a matter that
will vary from one legal territory to another according
to the accepted traditions as to the binding force of

THE JUDGE AS A LEGISLATOR

There is in truth nothing revolutionary or
even novel in this view of the judicial function.20
It is the way that courts have gone about their
business for centuries in the development of the
common law. The difference from age to age is
not so much in the recognition of the need that
law shall conform itself to an end. It is rather
in the nature of the end to which there has been
need to conform. There have been periods when
uniformity, even rigidity, the elimination of the
personal element, were felt to be the paramount
needs.27 By a sort of paradox, the end was best
served by disregarding it and thinking only of
the means. Gradually the need of a more flexible
system asserted itself. Often the gap between
the old rule and the new was bridged by the
pious fraud of a fiction.28 The thing which con¬
cerns us here is that it was bridged whenever the

precedents, the character of the enacted law, and the
wider or narrower liberty of judicial interpretation.”

26 Cf. Berolzheimer, 9 Modern Legal Philosophy
Series, pp. 167, 168.

27 Flavius, supra, p. 49; 2 Pollock and Maitland,
“History of English Law,” p. 561.

28 Smith, “Surviving Fictions,” 27 Yale L. J., 147,

Il6

THE JUDGE AS A LEGISLATOR
importance of the end was dominant. Today the
use of fictions has declined; and the springs of
action are disclosed where once they were con¬
cealed. Even now, they are not fully known,
however, even to those whom they control. Much
of the process has been unconscious or nearly so.
The ends to which courts have addressed them¬
selves, the reasons and motives that have guided
them, have often been vaguely felt, intuitively
or almost intuitively apprehended, seldom ex¬
plicitly avowed. There has been little of de¬
liberate introspection, of dissection, of analysis,
of philosophizing. The result has been an amal¬
gam of which the ingredients were unknown or
forgotten. That is why there is something of a
shock in the discovery that legislative policy has
made the compound what it is. “We do not

317; Ehrlich, supra, pp. 227, 228; Saleilles, “De la
Personnalite Juridique,” p. 382.

“Lorsque la loi sanctionne certains rapports juridiques,
a l’exclusion de tels autres qui en different, il arrive, pour
tels ou tels rapports de droit plus ou moins similaires
auxquels on sent le besoin d’etendre la protection legale,
que l’on est tente de proceder, soit par analogie, soit par
fiction. La fiction est une analogie un peu amplifiee, ou
plutot non dissimulee.” — Saleilles, supra.

117

THE JUDGE AS A LEGISLATOR
realize,” says Holmes,29 “how large a part of
our law is open to reconsideration upon a slight
change in the habit of the public mind. No con¬
crete proposition is self-evident, no matter how
ready we may be to accept it, not even Mr. Her¬
bert Spencer’s every man has a right to do what
he wills, provided he interferes not with a like
right on the part of his neighbors.” “Why,” he
continues, “is a false and injurious statement
privileged, if it is made honestly in giving in¬
formation about a servant? It is because it has
been thought more important that information
should be given freely, than that a man should
be protected from what under other circum¬
stances would be an actionable wrong. Why is
a man at liberty to set up a business which he
knows will ruin his neighbor? It is because the
public good is supposed to be best subserved by
free competition. Obviously such judgments of
relative importance may vary in different times
and places. ... I think that the judges them¬
selves have failed adequately to recognize their

29 “The Path of the Law,” io Harvard L. R. 466.

118

THE JUDGE AS A LEGISLATOR
duty of weighing considerations of social advan¬
tage. The duty is inevitable, and the result of
the often proclaimed judicial aversion to deal
with such considerations is simply to leave the
very ground and foundation of judgments in¬
articulate, and often unconscious, as I have
said.”

Not only in our common law system has this
conception made its way. Even in other systems
where the power of judicial initiative is more
closely limited by statute, a like development is
in the air. Everywhere there is growing emphasis
on the analogy between the function of the
judge and the function of the legislator. I may
instance Frangois Geny who has developed the
analogy with boldness and suggestive power.30
“A priori,” he says, “the process of research (la
recherche), which is imposed upon the judge in
finding the law seems to us very analogous to
that incumbent on the legislator himself. Except
for this circumstance, certainly not negligible,
and yet of secondary importance, that the process

30 Op. cit., vol. II, p. 77.

H9

THE JUDGE AS A LEGISLATOR
is set in motion by some concrete situation, and
in order to adapt the law to that situation, the
considerations which ought to guide it are, in
respect of the final end to be attained, exactly of
the same nature as those which ought to domi¬
nate legislative action itself, since it is a question
in each case, of satisfying, as best may be, justice
and social utility by an appropriate rule. Hence,
I will not hesitate in the silence or inadequacy
of formal sources, to indicate as the general line
of direction for the judge the following: that he
ought to shape his judgment of the law in obe¬
dience to the same aims which would be those of
a legislator who was proposing to himself to
regulate the question. None the less, an impor¬
tant distinction separates here judicial from
legislative activity. While the legislator is not
hampered by any limitations in the appreciation
of a general situation, which he regulates in a
manner altogether abstract, the judge, who de¬
cides in view of particular cases, and with refer¬
ence to problems absolutely concrete, ought, in
adherence to the spirit of our modern organiza-

120

THE JUDGE AS A LEGISLATOR
tion, and in order to escape the dangers of
arbitrary action, to disengage himself, so far as
possible, of every influence that is personal or
that comes from the particular situation which
is presented to him, and base his judicial decision
on elements of an objective nature. And that is
why the activity which is proper to him has
seemed to me capable of being justly qualified:
free scientific research, libre recherche sci-
entijique: free, since it is here removed from the
action of positive authority; scientific, at the
same time, because it can find its solid founda¬
tions only in the objective elements which science
alone is able to reveal to it.”31

The rationale of the modern viewpoint has
been admirably expressed by Vander Eycken32
in his “Methode positive de Interpretation
juridique”:33 “Formerly men looked upon law
as the product of the conscious will of the
legislator. Today they see in it a natural force.

31 Ehrlich has the same thought, “Die juristische
Logik,” p. 312.

32 Professor in the University of Brussels.

33 P. 401, sec. 239.

1 2 I

THE JUDGE AS A LEGISLATOR
If, however, we can attribute to law the epithet
‘natural,’ it is, as we have said, in a different
sense from that which formerly attached to the
expression ‘natural law.’ That expression then
meant that nature had imprinted in us, as one
of the very elements of reason, certain principles
of which all the articles of the code were only
the application. The same expression ought to
mean today that law springs from the relations
of fact which exist between things. Like those
relations themselves, natural law is in perpetual
travail. It is no longer in texts or in systems de¬
rived from reason that we must look for the
source of law; it is in social utility, in the neces¬
sity that certain consequences shall be attached
to given hypotheses. The legislator has only a
fragmentary consciousness of this law; he trans¬
lates it by the rules which he prescribes. When
the question is one of fixing the meaning of those
rules, where ought we to search? Manifestly at
their source; that is to say, in the exigencies of
social life. There resides the strongest proba¬
bility of discovering the sense of the law. In the

122

THE JUDGE AS A LEGISLATOR
same way when the question is one of supplying
the gaps in the law, it is not of logical deduc¬
tions, it is rather of social needs, that we are to
ask the solution.”

Many of the gaps have been filled in the de¬
velopment of the common law by borrowing from
other systems. Whole titles in our jurisprudence
have been taken from the law of Rome. Some of
the greatest of our judges — Mansfield in Eng¬
land, Kent and Story here — were never weary
of supporting their judgments by citations from
the Digest. We should be traveling too far afield
if we were to attempt an estimate of the extent
to which the law of Rome has modified the
common law either in England or with us.34
Authority it never had. The great historic move¬
ment of the Reception did not touch the British
Isles.33 Analogies have been supplied. Lines of
thought have been suggested. Wise solutions

34 On this subject, see Sherman, “Roman Law in the
Modern World”; Scrutton, “Roman Law Influence,”
I Select Essays in Anglo- Am. Legal Hist. 208.

35 1 Pollock and Maitland’s “History of English Law,”
88, 1 14; Maitland’s “Introduction to Gierke,” supra,
p. xii.

123

THE JUDGE AS A LEGISLATOR
have been offered for problems otherwise in¬
soluble. None the less, the function of the for¬
eign system has been to advise rather than to
command. It has not furnished a new method. It
has given the raw material to be utilized by
methods already considered — the methods of
philosophy and history and sociology — in the
moulding of their products. It is only one com¬
partment in the great reservoir of social expe¬
rience and truth and wisdom from which the
judges of the common law must draw their in¬
spiration and their knowledge.

In thus recognizing, as I do, that the power
to declare the law carries with it the power, and
within limits the duty, to make law when none
exists, I do not mean to range myself with the
jurists who seem to hold that in reality there is
no law except the decisions of the courts. I
think the truth is midway between the extremes
that are represented at one end by Coke and
Hale and Blackstone and at the other by such
authors as Austin and Holland and Gray and
Jethro Brown. The theory of the older writers

124

THE JUDGE AS A LEGISLATOR
was that judges did not legislate at all. A pre¬
existing rule was there, imbedded, if concealed,
in the body of the customary law. All that the
judges did, was to throw off the wrappings, and
expose the statue to our view.36 Since the days
of Bentham and Austin, no one, it is believed,
has accepted this theory without deduction or
reserve, though even in modern decisions we find
traces of its lingering influence. Today there is
rather danger of another though an opposite
error. From holding that the law is never made
by judges, the votaries of the Austinian analysis
have been led at times to the conclusion that it is
never made by anyone else. Customs, no matter
how firmly established, are not law, they say,
until adopted by the courts.37 Even statutes are
not law because the courts must fix their mean¬
ing. That is the view of Gray in his “Nature and
Sources of the Law.”38 “The true view, as I

36 Cf. Pound, 27 Harvard L. R. 731, 733-

37 Austin, “Jurisprudence,” vol. I, 37, 104; Holland,
“Jurisprudence,” p. 54! W. Jethro Brown, “The Aus¬
tinian Theory of Law,” p. 311.

38 Sec. 602.

125

THE JUDGE AS A LEGISLATOR
submit,” he says, “is that the Law is what the
Judges declare; that statutes, precedents, the
opinions of learned experts, customs and morality
are the sources of the Law.”39 So, Jethro Brown
in a paper on “Law and Evolution,”40 tells us that
a statute, till construed, is not real law. It is only
“ostensible” law. Real law, he says, is not found
anywhere except in the judgment of a court. In
that view, even past decisions are not law. The
courts may overrule them. For the same reason
present decisions are not law, except for the
parties litigant. Men go about their business from
day to day, and govern their conduct by an ignis
fatuus. The rules to which they yield obedience
are in truth not law at all. Law never is, but is
always about to be. It is realized only when
embodied in a judgment, and in being realized,
expires. There are no such things as rules or
principles: there are only isolated dooms.

A definition of law which in effect denies the
possibility of law since it denies the possibility of

39 Cf. Gray, supra, secs. 276, 366, 369.

40 29 Yale L. J. 394.

126

THE JUDGE AS A LEGISLATOR
rules of general operation,41 must contain within
itself the seeds of fallacy and error. Analysis is
useless if it destroys what it is intended to ex¬
plain. Law and obedience to law are facts con¬
firmed every day to us all in our experience of
life. If the result of a definition is to make them
seem to be illusions, so much the worse for the
definition; we must enlarge it till it is broad
enough to answer to realities. The outstanding
truths of life, the great and unquestioned
phenomena of society, are not to be argued away
as myths and vagaries when they do not fit
within our little moulds. If necessary, we must
remake the moulds. We must seek a conception
of law which realism can accept as true. Statutes
d© not cease to be law because the power to
fix their meaning in case of doubt or ambiguity
has been confided to the courts. One might as
well say for like reasons that contracts have no
reality as expressions of a contracting will. The
quality of law is not withdrawn from all prece¬
dents, however well established, because courts

41 Cf. Beale, “Conflict of Laws,” p. 153, sec. 129.

127

THE JUDGE AS A LEGISLATOR
sometimes exercise the privilege of overruling
their own decisions. Those, I think, are the con¬
clusions to which a sense of realism must lead
us. No doubt there is a field within which judicial
judgment moves un trammeled by fixed princi¬
ples. Obscurity of statute or of precedent or of
customs or of morals, or collision between some
or all of them, may leave the law unsettled, and
cast a duty upon the courts to declare it retro¬
spectively in the exercise of a power frankly
legislative in function. In such cases, all that
the parties to the controversy can do is to fore¬
cast the declaration of the rule as best they can,
and govern themselves accordingly. We must
not let these occasional and relatively rare in¬
stances blind our eyes to the innumerable in¬
stances where there is neither obscurity nor
collision nor opportunity for diverse judgment.
Most of us live our lives in conscious submission
to rules of law, yet without necessity of resort
to the courts to ascertain our rights and duties.
Lawsuits are rare and catastrophic experiences
for the vast majority of men, and even when the

128

THE JUDGE AS A LEGISLATOR
catastrophe ensues, the controversy relates most
often not to the law, but to the facts. In count¬
less litigations, the law is so clear that judges
have no discretion. They have the right to legis¬
late within gaps, but often there are no gaps. We
shall have a false view of the landscape if we
look at the waste spaces only, and refuse to see
the acres already sown and fruitful. I think the
difficulty has its origin in the failure to distin¬
guish between right and power, between the
command embodied in a judgment and the jural
principle to which the obedience of the judge is
due. Judges have, of course, the power, though
not the right, to ignore the mandate of a statute,
and render judgment in despite of it. They have
the power, though not the right, to travel beyond
the walls of the interstices, the bounds set to
judicial innovation by precedent and custom.
None the less, by that abuse of power, they vio¬
late the law. If they violate it willfully, i.e., with
guilty and evil mind, they commit a legal wrong,
and may be removed or punished even though
the judgments which they have rendered stand.

129

THE JUDGE AS A LEGISLATOR
In brief, there are jural principles which limit
the freedom of the judge,42 and, indeed, in the
view of some writers, which we do not need to
endorse, the freedom of the state itself.43 Life
may be lived, conduct may be ordered, it is lived
and ordered, for unnumbered human beings
without bringing them within the field where
the law can be misread, unless indeed the mis¬
reading be accompanied by conscious abuse of
power. Their conduct never touches the border¬
land, the penumbra, where controversy begins.
They go from birth to death, their action
restrained at every turn by the power of the
state, and not once do they appeal to judges to
mark the boundaries between right and wrong.

I am unable to withhold the name of law from
rules which exercise this compulsion over the
fortunes of mankind.44

42 Salmond, “Jurisprudence,” p. 157; Sadler, “Rela¬
tion of Law to Custom,” pp. 4) 6, 5o; F. A. Geer,

9 L. Q. R. 153.

43 Duguit, “Law and The State,” 31 Harvard L. R. 1;
Vinogradoff, The Crisis of Modern Jurisprudence,”
29 Yale L. J. 312; Laski, “Authority in the Modem
State,” pp. 41, 42.

44 “Law is the body of general principles and of

130

THE JUDGE AS A LEGISLATOR
The old Blackstonian theory of pre-existing
rules of law which judges found, but did not
make, fitted in with a theory still more ancient,
the theory of a law of nature. The growth of
that conception forms a long and interesting
chapter in the history of jurisprudence and
political science.45 The doctrine reached its high¬
est development with the Stoics, has persisted in
varying phases through the centuries, and im¬
bedding itself deeply in common forms of speech
and thought, has profoundly influenced the
speculations and ideals of men in statecraft and
in law. For a time, with the rise and dominance
of the analytical school of jurists, it seemed dis¬
credited and abandoned.46 Recent juristic thought
has given it a new currency, though in a form so
profoundly altered that the old theory survives

particular rules in accordance with which civil rights
are created and regulated, and wrongs prevented or re¬
dressed” (Beale, “Conflict of Laws,” p. 132, sec. 114).

45 Salmond, “The Law of Nature,” n L. Q. R. 121;
Pollock, “The History of the Law of Nature,” 1 Colum¬
bia L. R. 11 ; 2 Lowell, “The Government of England,”
477, 478; Maitland’s “Collected Papers,” p. 23.

46 Cf. Ritchie, “Natural Rights.”

THE JUDGE AS A LEGISLATOR
in little more than name.47 The law of nature is
no longer conceived of as something static and
eternal. It does not override human or positive
law. It is the stuff out of which human or positive
law is to be woven, when other sources fail.48
“The modern philosophy of law comes in contact
with the natural law philosophy in that the one
as well as the other seeks to be the science of
the just. But the modern philosophy of law de¬
parts essentially from the natural-law philosophy
in that the latter seeks a just, natural law out¬
side of positive law, while the new philosophy of
law desires to deduce and fix the element of the
just in and out of the positive law — out of what
it is and of what it is becoming. The natural law
school seeks an absolute, ideal law, ‘natural law,’
the law KaT igoxrjv, by the side of which
positive law has only secondary importance. The

47 Pound, 25 Harvard L. R. 162 ; Charmont, “La
Renaissance du droit naturel passim; also transl., 7
Modern Legal Philosophy Series, 106, hi; Demogue,
“Analysis of Fundamental Notions,” 7 Modern Legal
Philosophy Series, p. 373, sec. 212; Laski, “Authority
in the Modern State,” p. 64.

48 Vander Eycken, op. cit., p. 401.

132

THE JUDGE AS A LEGISLATOR
modern philosophy of law recognizes that there
is only one law, the positive law, but it seeks its
ideal side, and its enduring idea.”49 I am not
concerned to vindicate the accuracy of the
nomenclature by which the dictates of reason
and conscience which the judge is under a duty
to obey, are given the name of law before he has
embodied them in a judgment and set the im¬
primatur of the law upon them.50 I shall not be
troubled if we say with Austin and Holland and
Gray and many others that till then they are
moral precepts, and nothing more. Such verbal
disputations do not greatly interest me. What
really matters is this, that the judge is under a
duty, within the limits of his power of innova¬
tion, to maintain a relation between law and
morals, between the precepts of jurisprudence

49 Berolzheimer, “System der Rechts und Wirth-
schaftsphilosophie,” vol. II, 27, quoted by Pound, “Scope
and Purpose of Sociological Jurisprudence,” 24 Harvard
L. R. 607; also Isaacs, “The Schools of Jurisprudence,”
31 Harvard L. R. 373, 389; and for the mediaeval
view, Maitland’s “Gierke, Political Theories of the
Middle Age,” pp. 75, 84, 93, 173.

50 Holland, “Jurisprudence,” p. 54.

133

THE JUDGE AS A LEGISLATOR
and those of reason and good conscience. I sup¬
pose it is true in a certain sense that this duty
was never doubted.51 One feels at times, however,
that it was obscured by the analytical jurists,
who, in stressing verbal niceties of definition,
made a corresponding sacrifice of emphasis upon
the deeper and finer realities of ends and aims
and functions. The constant insistence that
morality and justice are not law, has tended to
breed distrust and contempt of law as something
to which morality and justice are not merely
alien, but hostile. The new development of
“naturrecht” may be pardoned infelicities of
phrase, if it introduces us to new felicities of
methods and ideals. Not for us the barren
logomachy that dwells upon the contrasts be¬
tween law and justice, and forgets their deeper
harmonies. For us rather the trumpet call of
the French “code civil”:52 “Le juge, qui refusera
de juger, sous pretexte du silence, de l’obscurite

51 See Gray, supra, p. 286, secs. 644, 645.

52 Art. 4 ; Gray,' supra, sec. 642 ; Geny, op. cit., vol.
II, p. 75, sec. 155; Gnaeus Flavius, “Der Kampf um die
Rechtswissenschaft,” p. 14.

134

THE JUDGE AS A LEGISLATOR
ou de l’insuffisance de la loi, pourra etre pour-
suivi comme coupable de deni de justice.”53 “It
is the function of our courts,” says an acute
critic, “to keep the doctrines up to date with
the mores by continual restatement and by giv¬
ing them a continually new content. This is
judicial legislation, and the judge legislates at
his peril. Nevertheless, it is the necessity and
duty of such legislation that gives to judicial
office its highest honor; and no brave and honest
judge shirks the duty or fears the peril.”54

You may say that there is no assurance that
judges will interpret the mores of their day more
wisely and truly than other men. I am not dis¬
posed to deny this, but in my view it is quite
beside the point. The point is rather that this
power of interpretation must be lodged some¬
where, and the custom of the constitution has
lodged it in the judges. If they are to fulfill their

53 “The judge who shall refuse to give judgment
under pretext of the silence, of the obscurity, _ or of
the inadequacy of the law, shall be subject to prosecu¬
tion as guilty of a denial of justice.”

64 Arthur L. Corbin, 29 Yale L. J. 771.

135

THE JUDGE AS A LEGISLATOR
function as judges, it could hardly be lodged else¬
where. Their conclusions must, indeed, be subject
to constant testing and retesting, revision and
readjustment; but if they act with conscience
and intelligence, they ought to attain in their
conclusions a fair average of truth and wisdom.
The recognition of this power and duty to shape
the law in conformity with the customary moral¬
ity, is something far removed from the destruc¬
tion of all rules and the substitution in every
instance of the individual sense of justice, the
arbitrium boni viri.55 That might result in a
benevolent despotism if the judges were benevo¬
lent men. It would put an end to the reign of law.
The method of sociology, even though applied
with greater freedom than in the past, is heading
us toward no such cataclysm. The form and
structure of the organism are fixed. The cells in
which there is motion do not change the pro¬
portions of the mass. Insignificant is the power
of innovation of any judge, when compared with

55 Cf. Standard Chemical Corp. v. Waugh Corp., 231
N. Y. si, 55.

136

THE JUDGE AS A LEGISLATOR
the bulk and pressure of the rules that hedge
him on every side. Innovate, however, to some
extent, he must, for with new conditions there
must be new rules. All that the method of
sociology demands is that within this narrow
range of choice, he shall search for social justice.
There were stages in the history of the law when
a method less psychological was needed. The
old quantitative tests of truth did not fail in
their day to serve the social needs.56 Their day
has long passed. Modem juristic thought, turn¬
ing in upon itself, subjecting the judicial process
to introspective scrutiny, may have given us a
new terminology and a new emphasis. But in
truth its method is not new. It is the method of
the great chancellors, who without sacrificing
uniformity and certainty, built up the system of
equity with constant appeal to the teachings of
right reason and conscience. It is the method by
which the common law has renewed its life at

56 Flavius, “Der Kampf um die Rechtswissenschaft,”
pp. 48, 49; Ehrlich, “Die juristische Logik,” pp. 291,
292.

137

THE JUDGE AS A LEGISLATOR
the hands of its great masters — the method of
Mansfield and Marshall and Kent and Holmes.

There have, indeed, been movements, and in
our own day, to make the individual sense of
justice in law as well as in morals the sole
criterion of right and wrong. We are invited,
in Geny’s phrase, to establish a system of
“juridical anarchy” at worst, or of “judicial im¬
pressionism” at best.57 The experiment, or some¬
thing at least approaching it, was tried not long
ago in France. There are sponsors of a like creed
among the critics of our own courts.68 The
French experiment, which has become known as
“le phenomene Magnaud,” is the subject of a
chapter in the epilogue to the last edition, pub¬
lished in 1919, of Geny’s brilliant book.69 Be¬
tween 1889 and 1904, the tribunal of the first

67 Geny, op. cit., ed. of 1919, vol. II, p. 288, sec. 196;
p. 305, sec. 200.

68 Bruce, “Judicial Buncombe in North Dakota and
Other States,” 88 Central L. J. 136; Judge Robinson’s
Reply, 88 id. 155; “Rule and Discretion in the Ad¬
ministration of Justice,” 33 Harvard L. R. 792.

59 Geny, op. cit., ed. of 1919, vol. II, p. 287, sec. 196,
et seq.

138

THE JUDGE AS A LEGISLATOR
instance of Chateau-Thierry, following the lead
of its chief, le President Magnaud, initiated a
revolt against the existing order in jurisprudence.
Its members became known as the good judges,
“les bons juges.” They seem to have asked them¬
selves in every instance what in the circum¬
stances before them a good man would wish to
do, and to have rendered judgment accordingly.
Sometimes this was done in the face of incon¬
sistent statutes. I do not profess to know their
work at first hand. Geny condemns it, and says
the movement has spent its force. Whatever the
merits or demerits of such impressionism may be,
that is not the judicial process as we know it in
our law.60 Our jurisprudence has held fast to
Kant’s categorical imperative, “Act on a maxim
which thou canst will to be law universal.” It
has refused to sacrifice the larger and more in¬
clusive good to the narrower and smaller. A con¬
tract is made. Performance is burdensome and
perhaps oppressive. If we were to consider only
the individual instance, we might be ready to
Salmond, “Jurisprudence,” pp. 19, 20.

139

THE JUDGE AS A LEGISLATOR
release the promisor. We look beyond the par¬
ticular to the universal, and shape our judgment
in obedience to the fundamental interest of
society that contracts shall be fulfilled. There is
a wide gap between the use of the individual
sentiment of justice as a substitute for law, and
its use as one of the tests and touchstones in
construing or extending law. I think the tone and
temper in which the modern judge should set
about his task are well expressed in the first
article of the Swiss Civil Code of 1907, an
article around which there has grown up a large
body of juristic commentary. “The statute,” says
the Swiss Code, “governs all matters within the
letter or the spirit of any of its mandates. In
default of an applicable statute, the judge is to
pronounce judgment according to the customary
law, and in default of a custom according to the
rules which he would establish if he were to
assume the part of a legislator. He is to draw
his inspiration, however, from the solutions con¬
secrated by the doctrine of the learned and the
jurisprudence of the courts — par la doctrine et

140

THE JUDGE AS A LEGISLATOR
la jurisprudence.”61 There, in the final precept,
is the gist of the difference between “le phe-
nomene Magnaud,” and justice according to
law. The judge, even when he is free, is still not
wholly free. He is not to innovate at pleasure.
He is not a knight-errant, roaming at will in
pursuit of his own ideal of beauty or of goodness.
He is to draw his inspiration from consecrated
principles. He is not to yield to spasmodic senti¬
ment, to vague and unregulated benevolence.
He is to exercise a discretion informed by tradi¬
tion, methodized by analogy, disciplined by sys¬
tem, and subordinated to “the primordial neces¬
sity of order in the social life.”62 Wide enough
in all conscience is the field of discretion that
remains.

61 Geny, op. cit., II, p. 213; also Perick, “The Swiss
Code,” XI, Continental Legal Hist. Series, p. 238, sec. 5.

62 Geny, op. cit., II, p. 303, sec. 200.

Lecture IV. Adherence to Precedent.
The Subconscious Element in the
Judicial Process. Conclusion.

HE system of law-making by judicial deci-

X sions which supply the rule for transac¬
tions closed before the decision was announced,
would indeed be intolerable in its hardship and
oppression if natural law, in the sense in which
I have used the term, did not supply the main
rule of judgment to the judge when precedent
and custom fail or are displaced. Acquiescence
in such a method has its basis in the belief that
when the law has left the situation uncovered
by any pre-existing rule, there is nothing to do
except to have some impartial arbiter declare
what fair and reasonable men, mindful of the
habits of life of the community, and of the
standards of justice and fair dealing prevalent
among them, ought in such circumstances to do,
with no rules except those of custom and con-

142

ADHERENCE TO PRECEDENT
science to regulate their conduct. The feeling is
that nine times out of ten, if not oftener, the
conduct of right-minded men would not have
been different if the rule embodied in the decision
had been announced by statute in advance. In
the small minority of cases, where ignorance has
counted, it is as likely to have affected one side
as the other; and since a controversy has arisen
and must be determined somehow, there is noth¬
ing to do, in default of a rule already made, but
to constitute some authority which will make
it after the event. Some one must be the loser;
it is part of the game of life; we have to pay
in countless ways for the absence of prophetic
vision. No doubt the ideal system, if it were
attainable, would be a code at once so flexible
and so minute, as to supply in advance for
every conceivable situation the just and fitting
rule. But life is too complex to bring the attain¬
ment of this ideal within the compass of human
powers. We must recognize the truth, says Geny,1
that the will {la volonte) which inspires a statute
1 Op. cit., preface, p. xvi.

143

ADHERENCE TO PRECEDENT
“extends only over a domain of concrete facts,
very narrow and very limited. Almost always, a
statute has only a single point in view. All
history demonstrates that legislation intervenes
only when a definite abuse has disclosed itself,
through the excess of which public feeling has
finally been aroused. When the legislator inter¬
poses, it is to put an end to such and such facts,
very clearly determined, which have provoked
his decision. And if, to reach his goal, he thinks
it proper to proceed along the path of general
ideas and abstract formulas, the principles that
he announces have value, in his thought, only in
the measure in which they are applicable to the
evils which it was his effort to destroy, and to
similar conditions which would tend to spring
from them. As for other logical consequences to
be deduced from these principles, the legislator
has not suspected them; some, perhaps many,
if he had foreseen, he would not have hesi¬
tated to repudiate. In consecrating them, no
one can claim either to be following his will or to
be bowing to his judgment. All that one does

144

ADHERENCE TO PRECEDENT
thereby is to develop a principle, henceforth
isolated and independent of the will which
created it, to transform it into a new entity,
which in turn develops of itself, and to give it
an independent life, regardless of the will of the
legislator and most often in despite of it.” These
are the words of a French jurist, writing of a
legal system founded on a code. The gaps in¬
evitable in such a system must, at least in equal
measure, be inevitable in a system of case law
built up, haphazard, through the controversies
of litigants.2 In each system, hardship must at
times result from postponement of the rule of
action till a time when action is complete. It is
one of the consequences of the limitations of the
human intellect and of the denial to legislators
and judges of infinite prevision. But the truth is,
as I have said, that even when there is ignorance
of the rule, the cases are few in which ignorance
has determined conduct. Most often the con¬
troversy arises about something that would

2 Pollock, “Essays in Jurisprudence and Ethics; The
Science of Case Law,” p. 241.

ADHERENCE TO PRECEDENT
have happened anyhow. An automobile is manu¬
factured with defective wheels. The question is
whether the manufacturer owes a duty of in¬
spection to anyone except the buyer.3 The oc¬
cupant of the car, injured because of the defect,
presses one view upon the court; the manu¬
facturer, another. There is small chance, which¬
ever party prevails, that conduct would have
been different if the rule had been known in
advance. The manufacturer did not say to him¬
self, “I will not inspect these wheels, because that
is not my duty.” Admittedly, it was his duty, at
least toward the immediate buyer. A wrong in
any event has been done. The question is to
what extent it shall entail unpleasant conse¬
quences on the wrongdoer.

I say, therefore, that in the vast majority of
cases the retrospective effect of judge-made law
is felt either to involve no hardship or only such
hardship as is inevitable where no rule has been
declared. I think it is significant that when the
hardship is felt to be too great or to be un-

3 MacPherson v. Buick Motor Co., 217 N. Y. 382.

146

ADHERENCE TO PRECEDENT

necessary, retrospective operation is withheld.
Take the cases where a court of final appeal has
declared a statute void, and afterwards, reversing
itself, declares the statute valid. Intervening
transactions have been governed by the first
decision. What shall be said of the validity of
such transactions when the decision is overruled?
Most courts in a spirit of realism have held that
the operation of the statute has been suspended
in the interval.4 It may be hard to square such
a ruling with abstract dogmas and definitions.
When so much else that a court does, is done
with retroactive force, why draw the line here?
The answer is, I think, that the line is drawn
here, because the injustice and oppression of a
refusal to draw it would be so great as to be in¬
tolerable. We will not help out the man who has

4 Harris v. Jex, 55 N. Y. 421; Gelpcke v. Dubuque,
1 Wall. 125 ; Holmes, J., in Kuhn v. Fairmount Coal
Co., 21S U. S. 349, 37i; 29 Harvard L. R. 80, 103;
Danchey Co. v. Farmy, 105 Misc. 470 ! Freeman,
“Retroactive Operation of Decisions,” 18 Columbia
L. R. p. 230; Gray, supra, secs. 547, 548; Carpenter,
“Court Decisions and the Common Law,” 17 Columbia
L. R. 593-

147

ADHERENCE TO PRECEDENT
trusted to the judgment of some inferior court.5
In his case, the chance of miscalculation is felt
to be a fair risk of the game of life, not different
in degree from the risk of any other misconcep¬
tion of right or duty. He knows that he has
taken a chance, which caution often might have
avoided. The judgment of a court of final appeal
is felt to stand upon a different basis. I am not
sure that any adequate distinction is to be drawn
between a change of ruling in respect of the
validity of a statute and a change of ruling in
respect of the meaning or operation of a statute,6
or even in respect of the meaning or operation
of a rule of common law.7 Where the line of
division will some day be located, I will make no
attempt to say. I feel assured, however, that its
location, wherever it shall be, will be governed,
not by metaphysical conceptions of the nature
of judge-made law, nor by the fetich of some im¬
placable tenet, such as that of the division of

5 Evans v. Supreme Council, 223 N. Y. 497, 503.

6 Douglass v. County of Pike, 101 U. S. 677.

7 Cf. Wigmore, “The Judicial Function,” Preface to
9 Modern Legal Philosophy Series, pp. xxxvii, xxxviii.

148

ADHERENCE TO PRECEDENT
governmental powers,8 but by considerations of
convenience, of utility, and of the deepest senti¬
ments of justice.

In these days, there is a good deal of discus¬
sion whether the rule of adherence to precedent
ought to be abandoned altogether.9 I would not
go so far myself. I think adherence to precedent
should be the rule and not the exception. I have
already had occasion to dwell upon some of the
considerations that sustain it. To these I may
add that the labor of judges would be increased
almost to the breaking point if every past deci¬
sion could be reopened in every case, and one
could not lay one’s own course of bricks on the
secure foundation of the courses laid by others
who had gone before him. Perhaps the constitu¬
tion of my own court has tended to accentuate
this belief. We have had ten judges, of whom

8 Laski, “Authority in the Modem State,” pp. 70, 71 ;
Green, “Separation of Governmental Powers,” 29 Yale
L- J- 37i.

9 “Rule and Discretion in the Administration of
Justice,” 33 Harvard L. R. 972; 29 Yale L. J. 909;
34 Harvard L. R. 74 ; 9 Modern Legal Philosophy Series,
Preface, p. xxxvi.

149

ADHERENCE TO PRECEDENT
only seven sit at a time. It happens again and
again, where the question is a close one, that a
case which one week is decided one way might
be decided another way the next if it were then
heard for the first time. The situation would,
however, be intolerable if the weekly changes in
the composition of the court were accompanied
by changes in its rulings. In such circumstances
there is nothing to do except to stand by the
errors of our brethren of the week before,
whether we relish them or not. But I am ready
to concede that the rule of adherence to prece¬
dent, though it ought not to be abandoned, ought
to be in some degree relaxed. I think that when
a rule, after it has been duly tested by experience,
has been found to be inconsistent with the sense
of justice or with the social welfare, there should
be less hesitation in frank avowal and full aban¬
donment. We have had to do this sometimes in
the field of constitutional law.10 Perhaps we
should do so oftener in fields of private law
where considerations of social utility are not so
10 Klein v. Maravelas, 219 N. Y. 383.

ADHERENCE TO PRECEDENT
aggressive and insistent. There should be greater
readiness to abandon an untenable position when
the rule to be discarded may not reasonably be
supposed to have determined the conduct of the
litigants, and particularly when in its origin it
was the product of institutions or conditions
which have gained a new significance or develop¬
ment with the progress of the years. In such cir¬
cumstances, the words of Wheeler, J., in Dwy v.
Connecticut Co., 89 Conn. 74, 99, express the tone
and temper in which problems should be met:
“That court best serves the law which recognizes
that the rules of law which grew up in a remote
generation may, in the fullness of experience, be
found to serve another generation badly, and
which discards the old rule when it finds that
another rule of law represents what should be ac¬
cording to the established and settled judgment
of society, and no considerable property rights
have become vested in reliance upon the old rule.
It is thus great writers upon the common law
have discovered the source and method of its
growth, and in its growth found its health and

iSi

ADHERENCE TO PRECEDENT
life. It is not and it should not be stationary.
Change of this character should not be left to the
legislature.” If judges have wofully misinter¬
preted the mores of their day, or if the mores
of their day are no longer those of ours, they
ought not to tie, in helpless submission, the hands
of their successors.

Let me offer one or two examples to make my
meaning plainer. I offer them tentatively and
without assurance that they are apt. They will
be helpful none the less. The instance may be
rejected, but the principle abides.

It is a rule of the common law that a surety
is discharged from liability if the time of pay¬
ment is extended by contract between the princi¬
pal debtor and the creditor without the surety’s
consent. Even an extension for a single day will
be sufficient to bring about that result.11 With¬
out such an extension, the surety would have the
privilege upon the maturity of the debt of mak¬
ing payment to the creditor, and demanding
immediate subrogation to the latter’s remedies

11N. Y. Life Ins. Co. v. Casey, 178 N. Y. 381.

152

ADHERENCE TO PRECEDENT
against the principal. He must, therefore, it is
said, be deemed to have suffered prejudice if,
by extension of the due date, the right has been
postponed. I have no doubt that this rule may
justly be applied whenever the surety can show
that the extension has resulted in actual damage,
as where the principal in the interval has become
insolvent, or the value of the security has been
impaired, though even in such circumstances the
measure of exoneration ought in justice to be de¬
termined by the extent of the damage suffered.
Perhaps there might be justice in permitting
exoneration whenever the surety had tendered
payment of the debt, and demanded subrogation
to the remedies against the debtor. Perhaps the
burden of disproving prejudice ought to be cast
upon the creditor. No such limitations have been
recognized. The rule applies to cases where
neither tender nor actual damage is established
or pretended. The law has shaped its judgments
upon the fictitious assumption that a surety,
who has probably lain awake at nights for fear
that payment may some day be demanded, has

i53

ADHERENCE TO PRECEDENT
in truth been smarting under the repressed de¬
sire to force an unwelcome payment on a reluc¬
tant or capricious creditor. The extended period
has gone by; the surety has made no move, has
not even troubled himself to inquire; yet he is
held to be released on the theory that were it
not for the extension, of which he knew nothing,
and by which his conduct could not have been
controlled, he would have come forward volun¬
tarily with a tender of the debt. Such rules are
survivals of the days when commercial dealings
were simpler, when surety companies were un¬
known, when sureties were commonly generous
friends whose confidence had been abused, and
when the main effort of the courts seems to have
been to find some plausible excuse for letting
them out of their engagements. Already I see
some signs of a change of spirit in decisions of
recent dates.12 I think we may well ask our¬
selves whether courts are not under a duty to go

12 Wilkinson v. McKemmie, 229 U. S. 590, 593;
U. S. v. McMullen, 222 U. S. 460, 468; Richardson v.
County of Steuben, 226 N. Y. 13; Assets Realization Co.
v. Roth, 226 N. Y. 370.

ADHERENCE TO PRECEDENT
farther, and place this branch of the law upon
a basis more consistent with the realities of
business experience and the moralities of life.

It is another rule of the common law that a
parol agreement, though subsequently made, is
ineffective to vary or discharge a contract under
seal.13 In days when seals counted for a good
deal, there may have been some reason in this
recognition of a mystical solemnity. In our day,
when the perfunctory initials “L. S.” have re¬
placed the heraldic devices, the law is conscious
of its own absurdity when it preserves the rubrics
of a vanished era.14 Judges have made worthy,
if shamefaced, efforts, while giving lip service to
the rule, to riddle it with exceptions and by
distinctions reduce it to a shadow.15 A recent
case suggests that timidity, and not reverence,
has postponed the hour of dissolution.16 The law

13 McCreery v. Day, 119 N. Y. 1 ; 3 Williston on Con¬
tracts, secs. 1835, 1836.

14 Harris v. Shorall, 230 N. Y. 343.

15 McCreery v. Day, supra; Thomson v. Poor, 147
N. Y. 402.

16 Harris v. Shorall, supra.

155

ADHERENCE TO PRECEDENT
will have cause for gratitude to the deliverer
who will strike the fatal blow.

I have drawn illustrations from the field of
substantive law. The law of evidence and gen¬
erally the whole subject of procedure supply
fields where change may properly be made with
a freedom even greater. The considerations of
policy that dictate adherence to existing rules
where substantive rights are involved, apply
with diminished force when it is a question of
the law of remedies. Let me take an illustration
from the law of evidence. A man is prosecuted
for rape. His defense is that the woman con¬
sented. He may show that her reputation for
chastity is bad. He may not show specific, even
though repeated, acts of unchastity with another
man or other men.17 The one thing that any
sensible trier of the facts would wish to know
above all others in estimating the truth of his de¬
fense, is held by an inflexible rule, to be some¬
thing that must be excluded from the considera¬
tion of the jury. Even though the woman takes
17 People v. Carey, 223 N. Y. 519.

156

ADHERENCE TO PRECEDENT
the stand herself, the defendant is not greatly
helped, for though he may then cross-examine
her about other acts, he is concluded by her
answer. Undoubtedly a judge should exercise a
certain discretion in the admission of such evi¬
dence, should exclude it if too remote, and should
be prompt by granting a continuance or other¬
wise to obviate any hardship resulting from
surprise. That is not the effect of the present
rule. The evidence is excluded altogether and
always. Some courts, indeed, have taken a differ¬
ent view, but their number unfortunately is
small. Here, as in many other branches of the
law of evidence, we see an exaggerated reliance
upon general reputation as a test for the ascer¬
tainment of the character of litigants or wit¬
nesses. Such a faith is a survival of more simple
times. It was justified in days when men lived in
small communities. Perhaps it has some justifica¬
tion even now in rural districts. In the life of
great cities, it has made evidence of character a
farce. Here, as in many other branches of adjec¬
tive law, a spirit of realism should bring about a

ADHERENCE TO PRECEDENT
harmony between present rules and present
needs.

None the less, the rule of adherence to prece¬
dent is applied with less rigidity in the United
States than in England, and, I think, with a
rigidity that is diminishing even here. The House
of Lords holds itself absolutely bound by its
own prior decisions.18 The United States Supreme
Court and the highest courts of the several
states overrule their own prior decisions when
manifestly erroneous.19 Pollock, in a paper en¬
titled “The Science of Case Law,” written more
than forty years ago, spoke of the freedom with
which this was done, as suggesting that the law
was nothing more than a matter of individual
opinion.20 Since then the tendency has, if any¬
thing, increased. An extreme illustration may be

18 Gray, supra, sec. 462 ; Salmond, “Jurisprudence,”
p. 164, sec. 64; Pound, “Juristic Science and the Law,”
31 Harvard L. R. 1053 ; London Street Tramways Co. v.
London County Council, 1898, A. C. 375, 379.

19 Pollock, “First Book of Jurisprudence,” pp. 319,
320; Gray, “Judicial Precedents,” 9 Harvard L. R. 27,
40.

20 “Essays in Jurisprudence and Ethics,” p. 245.

158

ADHERENCE TO PRECEDENT
found in a recent decision of a federal court.21
The plaintiff sued a manufacturer of automobiles
to recover damages for personal injuries resulting
from a defective car. On the first trial he had a
verdict, which the Circuit Court of Appeals for
the second circuit reversed on the ground that
the manufacturer owed no duty to the plaintiff,
the occupant of the car, since the latter was not
the original purchaser, but had bought from
some one else.22 On a second trial, the judge, in
obedience to this ruling, dismissed the complaint,
and a writ of error brought the case before the
same appellate court again. In the meantime,
the New York Court of Appeals had held, in an
action against another manufacturer, that there
was a duty in such circumstances, irrespective
of privity of contract.23 The federal court fol¬
lowed that decision, overruled its prior ruling,
and reversed the judgment of dismissal which
had been entered in compliance with its mandate.
The defendant in that case who first reversed the

21 Johnson v. Cadillac Motor Co., 261 Fed. Rep. 878.

22 221 Fed. 801.

2SMacPherson v. Buick Mfg. Co., 217 N. Y. 382.

159

ADHERENCE TO PRECEDENT
judgment because the complaint had not been
dismissed, and then suffered a reversal because
on the same evidence the complaint had been
dismissed, probably has some views of his own
about the nature of the judicial process. I do not
attempt to say whether departure from the rule
of adherence to precedent was justified in such
conditions. One judge dissenting held the view
that the earlier decision should have been applied
as the law of the case irrespective of its correct¬
ness, like the rule of res adjudicata. The con¬
clusion of the majority of the court, whether
right or wrong, is interesting as evidence of a
spirit and a tendency to subordinate precedent
to justice. How to reconcile that tendency, which
is a growing and in the main a wholesome one,
with the need of uniformity and certainty, is one
of the great problems confronting the lawyers
and judges of our day. We shall have to feel
our way here as elsewhere in the law. Some¬
where between worship of the past and exalta¬
tion of the present, the path of safety will be
found.

160

ADHERENCE TO PRECEDENT
Our survey of judicial methods teaches us, I
think, the lesson that the whole subject-matter
of jurisprudence is more plastic, more malleable,
the moulds less definitively cast, the bounds of
right and wrong less preordained and constant,
than most of us, without the aid of some such
analysis, have been accustomed to believe. We
like to picture to ourselves the field of the law
as accurately mapped and plotted. We draw our
little lines, and they are hardly down before we
blur them. As in time and space, so here. Divi¬
sions are working hypotheses, adopted for con¬
venience. We are tending more and more toward
an appreciation of the truth that, after all, there
are few rules; there are chiefly standards and
degrees. It is a question of degree whether I have
been negligent. It is a question of degree whether
in the use of my own land, I have created a
nuisance which may be abated by my neighbor.
It is a question of degree whether the law which
takes my property and limits my conduct, im¬
pairs my liberty unduly. So also the duty of a
judge becomes itself a question of degree, and

161

ADHERENCE TO PRECEDENT
he is a useful judge or a poor one as he
estimates the measure accurately or loosely. He
must balance all his ingredients, his philosophy,
his logic, his analogies, his history, his customs,
his sense of right, and all the rest, and adding
a little here and taking out a little there, must
determine, as wisely as he can, which weight shall
tip the scales. If this seems a weak and incon¬
clusive summary, I am not sure that the fault
is mine. I know he is a wise pharmacist who from
a recipe so general can compound a fitting
remedy. But the like criticism may be made of
most attempts to formulate the principles which
regulate the practice of an art. W. Jethro Brown
reminds us in a recent paper on ‘‘Law and Evolu¬
tion”24 that “Sir Joshua Reynolds’ book on
painting, offers little or no guidance to those who
wish to become famous painters. Books on
literary styles are notoriously lacking, speaking
as a rule, in practical utility.” After the weari¬
some process of analysis has been finished, there
must be for every judge a new synthesis which
24 29 Yale L. J. 394, 397.

162

ADHERENCE TO PRECEDENT
he will have to make for himself. The most that
he can hope for is that with long thought and
study, with years of practice at the bar or on the
bench, and with the aid of that inward grace
which comes now and again to the elect of any
calling, the analysis may help a little to make
the synthesis a true one.

In what I have said, I have thrown, perhaps
too much, into the background and the shadow
the cases where the controversy turns not upon
the rule of law, but upon its application to the
facts. Those cases, after all, make up the bulk
of the business of the courts. They are important
for the litigants concerned in them. They cal)
for intelligence and patience and reasonable dis¬
cernment on the part of the judges who must
decide them. But they leave jurisprudence where
it stood before. As applied to such cases, the
judicial process, as was said at the outset of these
lectures, is a process of search and comparison,
and little else. We have to distinguish between
the precedents which are merely static, and those

163

ADHERENCE TO PRECEDENT
which are dynamic.25 Because the former out¬
number the latter many times, a sketch of the
judicial process which concerns itself almost
exclusively with the creative or dynamic ele¬
ment, is likely to give a false impression, an
overcolored picture, of uncertainty in the law and
of free discretion in the judge. Of the cases that
come before the court in which I sit, a majority,
I think, could not, with semblance of reason, be
decided in any way but one. The law and its
application alike are plain. Such cases are pre¬
destined, so to speak, to affirmance without
opinion. In another and considerable percentage,
the rule of law is certain, and the application
alone doubtful. A complicated record must be
dissected, the narratives of witnesses, more or
less incoherent and unintelligible, must be
analyzed, to determine whether a given situation
comes within one district or another upon the
chart of rights and wrongs. The traveler who
knows that a railroad crosses his path must look
for approaching trains. That is at least the gen-
25 Cf. Salmond, “Jurisprudence,” p. 160.

164

ADHERENCE TO PRECEDENT
eral rule. In numberless litigations the descrip¬
tion of the landscape must be studied to see
whether vision has been obstructed, whether
something has been done or omitted to put the
traveler off his guard. Often these cases and
others like them provoke difference of opinion
among judges. Jurisprudence remains untouched,
however, regardless of the outcome. Finally there
remains a percentage, not large indeed, and yet
not so small as to be negligible, where a decision
one way or the other, will count for the future,
will advance or retard, sometimes much, some¬
times little, the development of the law. These
are the cases where the creative element in the
judicial process finds its opportunity and power.
It is with these cases that I have chiefly con¬
cerned myself in all that I have said to you. In
a sense it is true of many of them that they
might be decided either way. By that I mean that
reasons plausible and fairly persuasive might
be found for one conclusion as for another. Here
come into play that balancing of judgment, that
testing and sorting of considerations of analogy

165

ADHERENCE TO PRECEDENT
and logic and utility and fairness, which I have
been trying to describe. Here it is that the judge
assumes the function of a lawgiver. I was much
troubled in spirit, in my first years upon the
bench, to find how trackless was the ocean on
which I had embarked. I sought for certainty. I
was oppressed and disheartened when I found
that the quest for it was futile. I was trying to
reach land, the solid land of fixed and settled
rules, the paradise of a justice that would de¬
clare itself by tokens plainer and more command¬
ing than its pale and glimmering reflections in my
own vacillating mind and conscience. I found
“with the voyagers in Browning’s ‘Paracelsus’
that the real heaven was always beyond.”28 As
the years have gone by, and as I have reflected
more and more upon the nature of the judicial
process, I have become reconciled to the un¬
certainty, because I have grown to see it as in¬
evitable. I have grown to see that the process in
its highest reaches is not discovery, but creation ;

26 G. Lowes Dickinson, “Religion and Immortality,”
p. 70.

166

SUBCONSCIOUS FORCES
and that the doubts and misgivings, the hopes
and fears, are part of the travail of mind, the
pangs of death and the pangs of birth, in which
principles that have served their day expire, and
new principles are bom.

I have spoken of the forces of which judges
avowedly avail to shape the form and content of
their judgments. Even these forces are seldom
fully in consciousness. They lie so near the sur¬
face, however, that their existence and influence
are not likely to be disclaimed. But the subject
is not exhausted with the recognition of their
power. Deep below consciousness are other
forces, the likes and the dislikes, the predilections
and the prejudices, the complex of instincts and
emotions and habits and convictions, which make
the man, whether he be litigant or judge. I wish
I might have found the time and opportunity to
pursue this subject farther. I shall be able, as it
is, to do little more than remind you of its
existence.27 There has been a certain lack of

27 An interesting study of this subject will be found
in a book published since these lectures were written,

167

SUBCONSCIOUS FORCES
candor in much of the discussion of the theme,
or rather perhaps in the refusal to discuss it, as
if judges must lose respect and confidence by the
reminder that they are subject to human limita¬
tions. I do not doubt the grandeur of the concep¬
tion which lifts them into the realm of pure rea¬
son, above and beyond the sweep of perturbing
and deflecting forces. None the less, if there is
anything of reality in my analysis of the judicial
process, they do not stand aloof on these chill
and distant heights; and we shall not help the
cause of truth by acting and speaking as if they
do. The great tides and currents which engulf
the rest of men, do not turn aside in their course,
and pass the judges by. We like to figure to
ourselves the processes of justice as coldly ob¬
jective and impersonal. The law, conceived of as
a real existence, dwelling apart and alone, speaks,
through the voices of priests and ministers, the
words which they have no choice except to utter.
That is an ideal of objective truth toward which

“The Foundations of Social Science,” by James Mickel
Williams, p. 209 et seq.

168

SUBCONSCIOUS FORCES
every system of jurisprudence tends. It is an
ideal of which great publicists and judges have
spoken as of something possible to attain. “The
judges of the nation,” says Montesquieu, “are
only the mouths that pronounce the words of
the law, inanimate beings, who can moderate
neither its force nor its rigor.”28 So Marshall, in
Osborne v. Bank of the United States, 9 Wheat.
738, 866: The judicial department “has no will
in any case. . . . Judicial power is never exercised
for the purpose of giving effect to the will of the
judge; always for the purpose of giving effect to
the will of the legislature; or in other words, to
the will of the law.” It has a lofty sound; it is
well and finely said; but it can never be more
than partly true. Marshall’s own career is a
conspicuous illustration of the fact that the ideal
is beyond the reach of human faculties to attain.
He gave to the constitution of the United States
the impress of his own mind; and the form of

28 Montesquieu, “Esprit des Lois,” LIV, XI, chap. VI,
quoted by Ehrlich, “Die juristische Logik,” p. 101 ;
Geny, op. cit., p. 76; cf. Flavius, supra, p. 40.

169

SUBCONSCIOUS FORCES
our constitutional law is what it is, because he
moulded it while it was still plastic and malle¬
able in the fire of his own intense convictions.
At the opposite extreme are the words of the
French jurist, Saleilles, in his treatise “De la
Personnalite Juridique”:29 “One wills at the be¬
ginning the result; one finds the principle after¬
wards; such is the genesis of all juridical con¬
struction. Once accepted, the construction pre¬
sents itself, doubtless, in the ensemble of legal
doctrine, under the opposite aspect. The factors
are inverted. The principle appears as an initial
cause, from which one has drawn the result
which is found deduced from it.” I would not
put the case thus broadly. So sweeping a state¬
ment exaggerates the element of free volition. It
ignores the factors of determinism which cabin
and confine within narrow bounds the range
of unfettered choice. None the less, by its very
excess of emphasis, it supplies the needed cor¬
rective of an ideal of impossible objectivity.
Nearer to the truth, and midway between these
29 Pp. 45, 46.

170

SUBCONSCIOUS FORCES
extremes, are the words of a man who was not a
jurist, but whose intuitions and perceptions were
deep and brilliant — the words of President
Roosevelt in his message of December 8, 1908,
to the Congress of the United States:30 “The
chief lawmakers in our country may be, and
often are, the judges, because they are the final
seat of authority. Every time they interpret con¬
tract, property, vested rights, due process of law,
liberty, they necessarily enact into law parts of
a system of social philosophy; and as such in¬
terpretation is fundamental, they give direction
to all law-making. The decisions of the courts on
economic and social questions depend upon their
economic and social philosophy; and for the
peaceful progress of our people during the
twentieth century we shall owe most to those
judges who hold to a twentieth century economic
and social philosophy and not to a long outgrown
philosophy, which was itself the product of
primitive economic conditions.”

I remember that this statement when made,

30 43 Congressional Record, part 1, p. 21.

SUBCONSCIOUS FORCES
aroused a storm of criticism. It betrayed igno¬
rance, they said, of the nature of the judicial
process. The business of the judge, they told us,
was to discover objective truth. His own little
individuality, his tiny stock of scattered and
unco-ordinated philosophies, these, with all his
weaknesses and unconscious prejudices, were to
be laid aside and forgotten. What did men care
for his reading of the eternal verities? It was
not worth recording. What the world was seek¬
ing, was the eternal verities themselves. Far am
I from denying that this is, indeed, the goal
toward which all of us must strive. Something of
Pascal’s spirit of self-search and self-reproach
must come at moments to the man who finds
himself summoned to the duty of shaping the
progress of the law. The very breadth and scope
of the opportunity to give expression to his
finer self, seem to point the accusing finger of
disparagement and scorn. What am I that in
these great movements onward, this rush and
sweep of forces, my petty personality should de¬
flect them by a hairbreadth? Why should the

172

SUBCONSCIOUS FORCES
pure light of truth be broken up and impregnated
and colored with any element of my being?
Such doubts and hesitations besiege one now
and again. The truth is, however, that all these
inward questionings are born of the hope and
desire to transcend the limitations which hedge
our human nature. Roosevelt, who knew men,
had no illusions on this score. He was not positing
an ideal. He was not fixing a goal. He was
measuring the powers and the endurance of those
by whom the race was to be run. My duty as
judge may be to objectify in law, not my own
aspirations and convictions and philosophies, but
the aspirations and convictions and philosophies
of the men and women of my time. Hardly shall
I do this well if my own sympathies and beliefs
and passionate devotions are with a time that is
past. “We shall never be able to flatter ourselves,
in any system of judicial interpretation, that we
have eliminated altogether the personal measure
of the interpreter. In the moral sciences, there
is no method or procedure which entirely sup-

173

SUBCONSCIOUS FORCES
plants subjective reason.”31 We may figure the
task of the judge, if we please, as the task of a
translator, the reading of signs and symbols
given from without. None the less, we will not
set men to such a task, unless they have absorbed
the spirit, and have filled themselves with a love,
of the language they must read.

I have no quarrel, therefore, with the doctrine
that judges ought to be in sympathy with the
spirit of their times. Alas! assent to such a
generality does not carry us far upon the road
to truth. In every court there are likely to be
as many estimates of the “Zeitgeist” as there
are judges on its bench. Of the power of favor or
prejudice in any sordid or vulgar or evil sense,
I have found no trace, not even the faintest,
among the judges whom I have known. But every
day there is borne in on me a new conviction of
the inescapable relation between the truth with¬
out us and the truth within. The spirit of the age,
as it is revealed to each of us, is too often only

81 Geny, op. cit., vol. II, p. 93, sec. 159; vol. II,
p. 142, sec. 168; also Flavius, p. 43.

SUBCONSCIOUS FORCES
the spirit of the group in which the accidents of
birth or education or occupation or fellowship
have given us a place. No effort or revolution
of the mind will overthrow utterly and at all
times the empire of these subconscious loyalties.
“Our beliefs and opinions,” says James Harvey
Robinson,32 “like our standards of conduct come
to us insensibly as products of our companion¬
ship with our fellow men, not as results of our
personal experience and the inferences we in¬
dividually make from our own observations. We
are constantly misled by our extraordinary fac¬
ulty of ‘rationalizing’ — that is, of devising plausi¬
ble arguments for accepting what is imposed upon
us by the traditions of the group to which we be¬
long. We are abjectly credulous by nature, and in¬
stinctively accept the verdicts of the group. We
are suggestible not merely when under the spell
of an excited mob or a fervent revival, but we are
ever and always listening to the still small voice
of the herd, and are ever ready to defend and

32 “The Still Small Voice of the Herd,” 32 Political
Science Quarterly 315.

175

SUBCONSCIOUS FORCES

justify its instructions and warnings, and accept
them as the mature results of our own reason¬
ing.” This was written, not of judges specially,
but of men and women of all classes. The train¬
ing of the judge, if coupled with what is styled
the judicial temperament, will help in some
degree to emancipate him from the suggestive
power of individual dislikes and prepossessions.
It will help to broaden the group to which his
subconscious loyalties are due. Never will these
loyalties be utterly extinguished while human
nature is what it is. We may wonder sometimes
how from the play of all these forces of individ¬
ualism, there can come anything coherent, any¬
thing but chaos and the void. Those are the
moments in which we exaggerate the elements of
difference. In the end there emerges something
which has a composite shape and truth and order.
It has been said that “History, like mathematics,
is obliged to assume that eccentricities more or
less balance each other, so that something re¬
mains constant at last.”33 The like is true of the

33 Henry Adams, “The Degradation of the Demo-
cractic Dogma,” pp. 291, 292.

176

SUBCONSCIOUS FORCES
work of courts. The eccentricities of judges
balance one another. One judge looks at prob¬
lems from the point of view of history, another
from that of philosophy, another from that of
social utility, one is a formalist, another a
latitudinarian, one is timorous of change, an¬
other dissatisfied with the present; out of the
attrition of diverse minds there is beaten some¬
thing which has a constancy and uniformity and
average value greater than its component ele¬
ments. The same thing is true of the work of
juries. I do not mean to suggest that the product
in either case does not betray the flaws inherent
in its origin. The flaws are there as in every
human institution. Because they are not only
there but visible, we have faith that they will
be corrected. There is no assurance that the
rule of the majority will be the expression of
perfect reason when embodied in constitution or
in statute. We ought not to expect more of it
when embodied in the judgments of the courts.
The tide rises and falls, but the sands of error
crumble.

177

CONCLUSION

The work of a judge is in one sense enduring
and in another sense ephemeral. What is good
in it endures. What is erroneous is pretty sure
to perish. The good remains the foundation on
which new structures will be built. The bad will
be rejected and cast off in the laboratory of the
years. Little by little the old doctrine is under¬
mined. Often the encroachments are so gradual
that their significance is at first obscured. Finally
we discover that the contour of the landscape has
been changed, that the old maps must be cast
aside, and the ground charted anew. The process,
with all its silent yet inevitable power, has been
described by Mr. Henderson with singular
felicity:34 “When an adherent of a systematic
faith is brought continuously in touch with in¬
fluences and exposed to desires inconsistent with
that faith, a process of unconscious cerebration
may take place, by which a growing store of
hostile mental inclinations may accumulate,

34 “Foreign Corporations in American Constitutional
Law,” p. 164; cf. Powell, “The Changing Law of
Foreign Corporations,” 33 Pol. Science Quarterly, p.
569-

178

CONCLUSION

strongly motivating action and decision, but
seldom emerging clearly into consciousness. In
the meantime the formulas of the old faith are
retained and repeated by force of habit, until
one day the realization comes that conduct and
sympathies and fundamental desires have be¬
come so inconsistent with the logical framework
that it must be discarded. Then begins the task
of building up and rationalizing a new faith.”

Ever in the making, as law develops through
the centuries, is this new faith which silently
and steadily effaces our mistakes and eccen¬
tricities. I sometimes think that we worry our¬
selves overmuch about the enduring consequences
of our errors. They may work a little confusion
for a time. In the end, they will be modified or
corrected or their teachings ignored. The future
takes care of such things. In the endless process
of testing and retesting, there is a constant re¬
jection of the dross, and a constant retention of
whatever is pure and sound and fine.

The future, gentlemen, is yours. We have been
called to do our parts in an ageless process. Long

179

CONCLUSION

after I am dead and gone, and my little part in
it is forgotten, you will be here to do your share,
and to carry the torch forward. I know that the
flame will burn bright while the torch is in
your keeping.

180

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